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Annot|^^       . 
Forms  o#^d[eral 
Procedure 

Compiled,  Arranged  and  Annotated 

By 

FRANK  O.  LOVELAND 

Hi 

(Clerk  United  States  Circuit  Court  of  Appeals  for  the  Sixth  Circuit; 
Author  of  Loveland  on  Bankruptcy  and  Loveland  on 
\  Appellate  Jurisdiction  of  the  Federal  Courts) 


Third  Edition y  ^Revised  and  Enlarged 

By 

GEORGE  W.  RIGHTMIRE 

(Of  the  Columbus,   Ohio,   Bar,  and   Professor   of  Law   in   the 

College  of  Law  of  the  Ohio  State  University;  Author  of 

Rightmire's  Cases  on  the  Jurisdiction  and 

Procedure  of  the  Federal  Courts) 


THREE  VOLUMES 

VOLUME    I 


CINCINNATI 
THE  W.  H.  ANDERSON  COMPANY 

1920 


dlt'^        )        •         ■*    I.' 


V. 


mo 


Copyright,  1894 

BY 

THE  W.  H.  ANDERSON  COMPANY 
Copyright,  1903 

BY 

THE  W.  H.  ANDERSON  COMPANY 
Copyright,  1920 

BY 

THE  W.  H.  ANDERSON  COMPANY 


11 


19 

S  PREFACE 


Since  the  second  edition  of  this  work  there  have  been  many 
changes  in  the  Federal  Statutory  Law  relating  both  to  the  Sub- 
stantive Law  and  to  the  Law  of  Procedure;  the  Substantive  Law 
calls  for  pleadings  on  new  subjects,  and  the  Law  of  Procedure 
calls  for  new  pleadings  on  subjects  which  are  old.  Enough  time 
has  passed  since  these  important  changes  were  made  for  the 
accumulation  of  a  body  of  ■  precedents,  and  the  practice  has  in 
most  respects  become  stabilized. 

The  changes  referred  to  include  the  Federal  Safety  Appli- 
ance Act,  the  Employer's  Liability  Law,  the  Hours  of  Service 
Act,  the  Chinese  Exclusion  Act,  the  Deportation  Act,  the  Copy- 
right Act,  the  Trade-mark  Act,  the  Clayton  Act,  the  Federal 
Trade  Commission  Act,  extensive  changes  in  the  Interstate  Com- 
merce Act,  the  LaFollette  Act  (Seamen's  Act),  and  criminal 
acts  such  as  the  Harrison  Anti-Narcotic  Act,  the  Mann  White 
Slave  Act,  National  Prohibition  Act,  and  others,  all  of  which 
are  accounted  for  in  the  forms. 

Other  changes  referred  to  are  embodied  in  the  Judicial  Code, 
•the  New  Federal  Equity  Rules  with  their  far-reaching  influence, 
the  Penal  Code,  the  procedure  in  certain  kinds  of  injunction  pro- 
ceedings, the  abolishing  of  the  Circuit  Court  and  the  creation 
of  the  Court  of  Customs  Appeals,  the  enlarging  of  the  jurisdic- 
tion of  the  Federal  Supreme  Court  and  others  of  importance, 
all  of  which  were  not  in  effect  when  the  former  editions  were 
published. 

Forms  of  Appellate  Procedure,  including  jurisdictional  ques- 
tions, certiorari  to  remove  a  case  from  the  Circuit  Court  of 
Appeals  to  the  Supreme  Court,  etc.,  have  been  made  with  exact- 
ing care. 

Copious  new  forms  are  included  also,  dealing  with  the  parties 
in  case  of  diversity  of  citizenship  and  forms  for  alleging  the 
"Federal  Question"  and  the  "J^^^dictional  Amount,"  and  many 

Hi 


iv  PREFACE 

new  forms  have  been  introduced  among  the  older  matter  where 
a  greater  variety  was  possible.  Almost  all  of  the  forms  are 
taken  from  adjudicated  cases. 

The  annotations  which  follow  the  forms  will  be  of  great  help 
to  the  busy  lawyer  by  giving  him  the  essentials  of  the  decisions 
and  indicating  where  he  can  find  the  law  fully  discussed. 

Hearty  acknowledgment  is  made  of  valuable  and  cordial 
assistance  rendered  by  the  clerks  of  all  the  Circuit  Courts  of 
Appeals,  and  by  the  Clerk  of  the  United  States  Supreme  Court, 
and  the  Judge  and  the  Clerk  of  the  United  States  District  Court 
in  the  Eastern  Division  of  the  Southern  District  of  Ohio. 

George  W.  Rightmire. 
March,  1920. 


TABLE  OF  CONTENTS 


JURISDICTION 
ALLEGATIONS  OF  CITIZENSHIP 

Form  No.  Page 

1 .  Caption  1 

2.  A  Citizen  against  a  Citizen 3 

3.  Co-plaintiffs   against    Co-defendants 5 

4.  A   Citizen    against    a    Firm --6 

5.  A   Firm  against   a   Citizen 8 

6.  A   Firm   against   a    Firm 8 

7.  A    Corporation    against    a    Corporation 9 

8.  A  Citizen  against  a  Corporation 11 

9.  A  Citizen  against  a  Corporation  of  Two  or  more  States 11 

10.  A  Corporation  against  a  Citizen 13 

11.  A  Firm  against   a   Corporation 13 

12.  A   Corporation   against   a   Firm 13 

13.  An  Infant  Suing  by  His  Guardian 14 

14.  An  Infant   Suing  by  His  Next  Friend 15 

15.  An  Insane  Person   Suing  by  His  Guardian   or  Curator 16 

1 G.  By  an   Administrator 16 

17.  By   a   Foreign   Administrator 17 

18.  By  an  Administrator  de  Bonis  Non 19 

19.  Against  an  Administrator 20 

20.  By   an    Executor 20 

21.  Against  an  Executor 21 ' 

22.  By  a  Trustee 21 

23.  By  a  Corporation  as  Trustee  under  a  Mortgage,  Deed  of  Trust, 

etc 23 

24.  By  a  Trustee  in  Bankruptcy 24 , 

25.  A  Trustee  under  a  Will  against  an  Executor  and  Others 25 

26.  By  a  Few  Suing  for  Themselves  and  Others  Similarly  Situated. .  26 

27.  By  a  Representative  for  a  Joint  Stock  Company 28 

28.  Against  a  Few  as  Representatives  of  a  Community  or  Society. .  29 
21).  Against  a  Few  as  Representatives  of  a  Labor  Union 32 

30.  By  a  National  Bank 33 

31.  Against  a   National   Bank 34 

32.  By  an   Assignee   of  a   Chose   in   Action 35 

33.  By    an    Alien 37 

S4.  Against   an  Alien 40 

V 


VI  TABLE   OF    CONTENTS. 

Form  No,  Page 

35.  By   an   Alien   Corporation 40 

36.  Against  an  Alien  Corporation 41 

37.  Citizen  against  an  Alien  and  a  Citizen 42 

38.  State   against   a   State 42 

39.  United  States  against  a  Corporation 43 

40.  United  States  against  a  State 44 

41.  Commencement  where  Corporation  Sues  a  County 44 

41a.  Allegations  of  Federal  Question 45 

41b.  Allegations  of  Amount  Involved 51 

SUITS  AT  LAW— DECLARATIONS  AND  PETITIONS 

42.  Declaration  against  Railway  Company  for  Damages  for  Personal 

Injuries  from  Collision  of   Trains 57 

43.  Petition  against  R.  R.  Co.  for  Personal  Injuries  to  an  Employee.  57 

44.  Petition  for  Damages  for  Personal  Injury 60 

45.  Verification   by   Corporation   Officer 64 

46.  Verification  of  Complaint  by  Testamentary  Guardian 64 

47.  Declaration  in  Tort  for  Carrier's  Negligence  in  Massachusetts.  65 

48.  Declaration  by  a  Minor  by  His  Next  Friend  for  Damages  for 

Personal   Injury    69 

49.  Petition   by   an   Administrator  for  Damages   for   Death   at   a 

R.   R.   Crossing 71 

50.  Petition   against   Receivers   for   Damages   for   Ejectment   from 

Railway  Train  74 

51.  Petition  to  Recover  on  Township  Bonds 75 

52.  Petition  by  County  Treasurer  for  Back  Taxes 78 

63.     Declaration  on  Policy  of  Accident  Insurance 79 

54.    Declaration  to  Recover  on  Policy  of  Fire  Insurance 80 

65.     Complaint  on  Insurance  Policy 81 

56.     Petition  on  a   Credit  Indemnity  Bond 84 

67.  Petition  to  Recover  for  Libel 89 

68.  Declaration  in  Action  for  Damages  for  Defamation  by  Calling 

a  White  Man  a  Negro 92 

59.  Declaration  in  Replevin  for  Lumber  Cut  on  Lands  Claimed  by 

Both   Parties    98 

60.  Declaration  in  Ejectment 101 

61.  Declaration  in  Trespass  and  Ejectment 102 

62.  Petition  by  United  States  for  Timber  Trespass 103 

63.  Petition  by  the  United  States  against  Railway  for  Failing  to 

Unload  Stock  En  Route 104 

64.  Petition  of  Receiver  against  Stockholder 107 

65.  Declaration  against  Assignee  of  Shares  for  Assessment  Thereon.  118 

66.  Action   in   Trespass   by   Minor  by   Next   Friend    and   by   Next 

Friend   in   His  Own   Right — Plaintiff's   Statement 121 

67.  Petition  to  Recover  on  Reparation  Order  of  the  Interstate  Com- 

merce   Commission    and    Praecipe 124 


/ 


TABLE    OF    CONTENTS.  Vll 

Form  No.                                                                                                        Page 
68.    Complaint  against  Carriers  on  Award  of  Reparation  by  Inter- 
state  Commerce   Commission 128 

G9.     Doclarntion  in  Assumpsit  for  Goods  Sold  and  Delivered 135 

70.  Suit   agiiinst  Company   on   Fidelity   I>ond 136 

71.  Complaint  for  Personal  Injury  against  I'artnership  and  Corpora- 

tion     137 

72.  Complaint  for  Breach  of  Contract  of  Sale..    130 

73.  Declaration  against  Carrier  for  Violation   of  Safety  Appliance 

Act    142 

73a.  Another    Petition   for    Violation    of    Federal    Safety    Appliance 

Act    144 

73b.  Answer  in  Suit  for  Violation  of  Federal  Safety  Appliance  Act. .  147 

74.  Complaint  again.<t  Railroad  for  Fire  Along  Hight  of  Way 148 

75.  Complaint  against  flic  Collector  of  Internal  Revenue  for  Illegal 

E.xaction    of    K.xcise   Ta.xes 149 

76.  Allegation  of   (Guardianship   Ad    Litem 152 

77.  Complaint  for  Refusal  to  Honor  Check  against  an  Open  Account.  152 

78.  Declaration  by  State  on  Indemnifying  Bond  Given   in  Suit  to 

Enjoin    153 

70.     Writ  and  Declaration — Violation  of  Federal  Employers  Liabil- 
ity   Act     157 

80.  Complaint  where  Attorneys  Sue  for  Fees 160 

81.  Information  against  a  Carrier  for  Violation  of  Hours  of  Serv- 

ice  Act    162 

82.  Complaint   in   Suit   for   Violation    of   Hours   of   Service   Act   of 

the    United    States 168 

83.  Answer  in  Suit  for  Violation  of  Federal  Hours  of  Service  Act.  160 

84.  Action  on  Judgment  against  Assignee  of  Debtor's  Assets 170 

85.  Complaint  by   Husband   and   Wife  for  Recovery   of  Money  for 

Wife's   Separate   Estate 174 

85a.  Declaration   for  Infringement  of  a  Patent 177 

S5b.  Declaration  for  Infringement  of  a  Copyright  or  Trade-mark...  177 

PLEADINGS  BY  THE  DEFENDANT  AND  REPLY  BY  THE 
PLAINTIFF 

86.  Demurrer  to  Declaration  for  Want  of  .Turi.sdiction 177 

87.  Plea    to    the    Jurisdiction 177 

88.  General  Demurrer   180 

89.  Demurrer  to  Declaration  for  Damages  for  Personal  Injury...  180 

90.  Demurrer  Based  on  Case  Being  One  under  Maritime  Law 182 

91.  Demurrer   to  Complaint — General  and  Special 183 

92.  Demurrer   to   Pleas 184 

93.  Demurrer    to    Answer 184 

94.  General   Demurrer  to   an   Amended  Answer 185 

05.     Plea  Not  Guilty  in  Trespass  by  Cutting  Timber 185 

96.     Plea  Not   Guilty   in   Ejectment 185 


i-iil  TABLE    OF    COXTENTS. 

Form  No.  Page 

97.  Plea,  General  Issue  and  Contributory  Negligence 186 

98.  Answer  in  Action  for  Tort,  Alleging  Negligence  of  Plaintiff 186 

99.  Plea,  Raising  General  Issue 186 

100.  Defendant's  Plea  and  Brief  Statement  in  Action  for  Assessment 

on   Shares    187 

101.  Plea  of  Defendant  in  Action  for  Violation  of  Federal  Employer's 

Liability  Act   189 

102.  Plea  of  General  Issue  to  Additional  Courts 190 

103.  Allegation  of  Negligence  and  Assumed  Eisk 100 

104.  Defense  of  Another  Action  Pending 191 

105      Defen.se  to  Counterclaim  of  Another  Action  Pending 191 

106.  Counterclaim  in  Suit  for  Breach  of  Contract  of  Sale 191 

107.  Defense  of  Breacli  of  Contract 194 

108.  Defense  of  Tender '. 195 

109.  Defense  of  Res  Adjudicata 196 

110.  Pleading  Equitable  Defense  in  Action  at  Law 198 

111.  Plea  of  General  Issue  with  Notice  of  Set-off 201 

112.  Pleas  to  a  Declaration  by  an  Engineer  for  Damages  for  Per- 

sonal Injury  202 

113.  Plea  of  Statute  of  Limitations , 204 

114.  Pleas  to  a  Declaration  on  Policy  for  Accident  Insurance 204 

115.  Plea  that  Suit  Has  Abated  by  Death  of  only  Beneficiary 205 

116.  Answer  to  Suit  on  Fidelity  Bond 206 

117.  Disclaimer  in  Action  in  Ejectment 211 

118.  Answer  of  Railway  to   a   Petition  for  Damages   for   Personal 

Injury     21 1 

119.  Answer  of  Receivers  to  a  Petition  for  Damages  for  Ejectment 

from  Railway  Train 212 

1^0.  Answer  of  Railroad  Company  to  Petition  for  Damages  for' Per- 
sonal Injury — General  Denial  witli  Defense  of  Contribu- 
tory Negligence 21,3 

121.  Answer  of  Railway  Company  to  Petition  for  Damages  for  Per- 

sonal Injury  214 

122.  Answer  of  a  Transportation  Company  to  Suit  for  Taxes 216 

123.  Answer  of  an  Incorporated  Village  to  a  Petition  to  Recover  on 

Bonds  and  Coupons 221 

124.  Reply  to  Answer 223 

125.  Similiter  and  Replications  to  Pleas 223 

126.  Joinder  and  Replication 224 

127.  Replication  to  Pleas  in  Suit  on  Policy  of  Insurance 225 

128.  Replj'  to  Answer  in  Suit  on  Municipal  Bonds 226 

129.  Reply  by  Plaintiff  Denying  Contributory  Negligence 228 

130.  Replication  and  Demurrer  to  Defendant's  Pleas 229 

131.  Rejoinder   to   Replication 230 


TABLE    OF    CONTENTS.  IX 

PROCESS,  MOTIONS,  JUDGMENT,  BILLS  OF 

EXCEPTIONS,  ETC. 

Form  No.  Page 

i;51a.  Praecipe  for   Summons 230 

132.  Summons  at  Law 231 

133.  Teste  for  ^V■rits  Issuing  from  a  District  Court 231 

134.  Summons  in  Action   in  Assumpsit 232 

135.  Writ   in  Action  of  Tort  in  Massachusetts  aand   Return 232 

136.  Alias  Summons  and  Return 234 

137.  Teste  for  Writs  Issuing  from  tlie  Supreme  Court  or  a  Circuit 

Court  of  Appeals 235 

138.  Return  of  Writ  by  Marshal 235 

139.  Cost  Bond   236 

140.  Notice  to  Surety 236 

141.  Affidavit  by  Poor  Person  to  Dispense  with  Surety  for  Costs..  237 

142.  Certificate  of  Counsel  to  Poverty  Affidavit 2.39 

143.  Order   to   Sue   in   Forma   Pauperis 240 

144.  Motion  for  Service  by  Publication 240 

145.  Affidavit  for  Service  by  Publication  of  Non-Resident  Defend- 

ants       242 

146.  Order  for  Service  by  Publication 242 

147.  Notice  for  Publication 243 

147a.  Proof  of  Publication 243 

148.  Order  for  Service  on  Non-Resident  Defendants 244 

149.  Certified  Copy  of  Order  for  Service  on  Non-Resident  Defendant, 

and  the  Return  of  Officer  Serving  Same 244 

150.  Appearance    246 

151.  Appearance  for  Special  Pleading 246 

152.  Appearance  by  Defendant  in  Person 246 

153.  Order  Substituting  Attorneys 246 

154.  Order  of  Substitution  of  Attorney,  and  Consent  Thereto 247 

155.  Motion  by  Receivers  to   Quash   Service  of  Summons 248 

156.  Notice  to  Plead 248 

157.  Notice  to  Declare 249 

158.  Notice  of  Motion  for  Leave  to  Amend 249 

159.  Demand  of  Oyer 250 

160.  Notice  to  Reply   251 

161.  Notice   of   Trial 251 

162.  Subpoena  of  Witness  to  Testify  Before  a  Commissioner 252 

163.  Habeas  Corpus  Ad  Testificandum 252 

164.  Order   Overruling   Motions   to   Make   Complaint   More   Specific 

and  to  Strike  Portions  Thereof,  etc 252 

165.  Motion  of  Defendant  to  Make  Complaint  More  Specific 253 

16G.     Motion  of  Defendant  to  Strike  Portions  of  Complaint 253 

167.  Motion   for   Leave   to   Amend   Complaint   After   Verdict 254 

168.  Motion  to  Make  Petition  Definite  and  Certain 255 

169.  Order  Granting  Motion   to   Make   Petition   More  Definite  and 

Certain     255 


X  TABLE    OF    CONTENTS. 

Form  No.  Page 

170.  Order  Allowing  Amendment  to  Count  in  Declaration 255 

171.  Order   Granting   Leave   to   Plead 256 

172.  Affidavit  to  Withdraw  a  Plea  in  Bar 256 

173.  Motion  to  Strike  Out  Pleas 257 

174.  Order   Allowing   Amendment   to    Plea 257 

175.  Order  Allowing  Amendment   (Plea  of  Statute  of  Limitations), 

and  Striking  Same  from  Files 257 

176.  Writ   of   Venire   for   Jury 258 

177.  Order  Impaneling  Jury  and  Trial  Begun 258 

178.  Order  Discharging  Jury  Until  Future  Day 259 

179.  Order  for  Trial  by  Eleven  Jurors 259 

180.  Stipulation  Waving  Jury 260 

181.  Oath  of  Jury  on  Voir  Dire 260 

182.  Oath   of  Witness 261 

183.  Affirmation  of  Witness 261 

184.  Motion  to  Dissolve  Attachment  and  Vacate  Bond 261 

185.  Motion  to  Transfer  Suit  from  One  Division  to  Another  Divi- 

sion of  the  Same  District 262 

186.  Order    Transferring    Suit   to    Anotlier    Division    in    the    Same 

District 263 

187.  Order  Transferring  Cause  to  Another  Place  in  Same  District..  264 

188.  Motion  to  Transfer  to  Equity  Docket 264 

189.  Petition  of  Defendant  for  Transfer  of  Case  to  Equity  Docket. .  266 

190.  Notice  to  Plaintiff  of  Motions  to  Transfer  Case  to  Equity  Side 

and  Strike  Portions  of  Reply,  etc 266 

191.  Order   Denying   Motion    of    Defendant    to    Strike    Portions    of 

Reply  to  Answer,  and  Petition  of  Defendant  to  Transfer 

tlie  Case  to  the  Equity  Docket 267 

191a.  Petition  for  Assignment  of  a  District  Judge 268 

191b.  Certificate  of  Good  Faith 269 

192.  Disqualification   of  Judge 270 

192a.  Order  of  Disqualification  of  District  Judge 271 

193.  Designation  of  Judge  by  President 271 

193a.  Order  Designating  Judge  for  Special  Service 272 

194.  Designation  of  Judge  by  Circuit  Judge 272 

195.  Verdict  Directed  by  the  Court. 273 

196.  Verdict  for  the  Plaintiff 273 

197.  Joint  and  Several  Judgment,  Order 273 

198.  Order    of    Supreme    Court    in    Suit,    between    States,    on    an 

Indebtedness     274 

199.  Verdict    for   the    Plaintiff    against    Two    or   More    Defendants 

Jointly    275 

200.  Verdict  for  the  Defendant 275 

201.  Order  Overruling  Demurrer  to  Petition  and  Permitting  Amend- 

ment     276 

202.  Order    Sustaining    Demurrer    to     Declaration    and    Allowing 

Amendment    276 


TABLE    OF    CONTENTS.  XI 

Form  No.  Page 

203.  Leave  to  Amend  Answer  in  Open  Court 277 

204.  Order  Overruling  ])eniurrer 277 

205.  Order  Overruling  Demurrer  for  Failure  to  Prosecute 27P 

206.  Election   of  Defendants   to   Stand  on  Answer  after  Demurrer 

Thereto  Allowed    278 

207.  Order  Sustaining  Demurrer  to  Pleas 278 

208.  Judgment  where  no  Jury 279 

200      Judgment  where  Jury  Waived 279 

210.  Judgment  on  Stipulation  of  Facts  and  Waiver  of  Jury 280 

211.  Judgment  where  Jury  Waived  and  Court  Makes  Findings  and 

States  Conclusions  of  Law 281 

212.  Judgment — Non-Suit  as  to  Certain  Parties  Defendant 282 

213.  Entry — Impaneling  of  Jury  and   Beginning  of   Trial 283 

214.  Motion  to  Dismiss  Complaint  in  Open  Court  upon  Completion 

of   Prima    Facie   Case 284 

21.5.     Motion  by  Defendant  to  Dismiss  and  to  Direct  Verdict,  upon 

Completion  of  Plaintiff's  Prima  Facie  Case 285 

21G.     Motion   by   Defendant   to   Dismiss  and  Direct  Verdict  at  Con- 
clusion  of  All  Testimony 286 

217.  ^lotion  to  Exclude  All  Evidence  and  to  Instruct  Jury  to  Find 

for  Defen(huit    286 

218.  Judgment  for  Plaintiff 287 

219.  Judgment   for  Defendant 287 

220.  Order  Sustaining  Demurrer  and  Judgment  for  Defendant 288 

221.  Motion  for  Judgment  on  the  Pleadings 288 

222.  Judgment  in  Condemnation   Proceeding 289 

223.  Judgment  where  L'ndertaking  to  Dissolve  Attachment 201 

223a.  Motion  in  Open  Court  to  Determine  Ecjuitable  Defense  in  Law 

Action  by  Court  as  Cliancellor  in  Equity 202 

223b.  Defendant's    Reservation    of    Rights    Respecting    Certain    Re- 
quested Instructions  to  -tury,  where  Equitable  Defense.  292 
223c.  Objection  in  Open  Court  to  Taking  Testimony  on  Entire  Case, 

where  Equitable  Defense,  until  Later  Disposed  of 293 

224.  Advisory    ^'erdict    on    Etjuitable    Defense    in    Action    at    Law, 

and  Adoption  Thereof,  and  Judgment  Tliereon 203 

225.  Petition   and   Motion    that   the   Court,   Sitting  as   a   Court  of 

Chancery.  Make   Finding.?   and    Enter   Decree^   Notwith- 
standing  Advisory   Verdict   of   tlie  Jury 295 

226.  Judgment  for  Plaintiff  upon  Sustaining  Demurrer  to  Answer..  208 

227.  Remittitur    298 

228.  Plaintiff,   a   Minor,   by   His   Testamentary   Guardian,   Consents 

to  Reduction  of  Assessed  Damages ; 299 

229.  Order  Denying  Motion  for  a  New  Trial  where  Verdict  Reduced.  299 

230.  Alternative   Order   Reducing   Verdict 300 

2;>1.     Judgment  on   Reduced   Verdict 301 

232.  Judgment  on   Reduced   \'erd  let 302 

233.  Judgment  for  Plaintiff  upon  Remitting  Part  of  Verdict 303 


Xll  TABLE    OF    CONTENTS. 

Form  No.  Page 

234.  Judgment  for  PlaintiflF,  Overruling  Motion  for  New  Trial  and 

Settling  Bill   of   Exceptions 304 

235.  Verdict   and   Judgment   in   Ejectment 305 

236.  Motion  for  a  New  Trial 305 

237.  Motion   for   a   New   Trial   by   Defendant 306 

238.  Motion  for  New  Trial   where  Court  Instructed  Jury  to   Find 

for  Defendant   307 

239.  Order  Setting  Aside  Order  Sustaining  Motion  for  New  Trial. . .  307 

240.  Order  Sustaining  Motion  for  New  Trial  and  Ordering  a  New 

Trial   308 

241.  Order   Overruling   Motion   for    New    Trial   and   Judgment    for 

Defendant    upon    the    Verdict 308 

242.  Motion  for  New  Trial 309 

243.  Motion  for  a  New  Trial,  and  Order  Overruling,  and  Judgment. .  309 

244.  Order  Overruling  Motion  for  New  Trial  and  Judgment 311 

245.  Order   Overruling   Motion    for   New    Trial,   Motion    in    Arrest, 

and  Judgment   311 

246.  Entry  on  Motion  for  New  Trial 312 

247.  Petition  for  Extension  of  Time  Within  which  to  Make  Motion 

for  New  Trial 313 

248.  Entry  of  Trial  in  Progress;  Verdict  for  Defendant  by  Direction 

of  Court 314 

249.  AflBdavit  in  Suj^port  of  Motion  to  Set  Aside  a  Verdict  Reached 

by  Improper  Method 315 

250.  Extract  from  Charge  on  Weighing  of  Testimony 316 

251.  Writ   of   Replevin 317 

252.  Return  of  Marslial  on  above  Writ  of  Replevin 318 

253.  Replevin   Bond   318 

254.  Oath  of  Appraisers  of  Goods  Taken  on  Writ  of  Replevin 319 

255.  Report  of  Appraisers 320 

250.     Fieri   Facias    320 

257.  Vendi    Exponas    321 

258.  Rule  to  Show  Cause 322 

259.  Undertaking  in  Attachment 322 

260.  Writ   of  Attachment 323 

261.  Writ  of  Attachment  for  Contempt 324 

202.     Scire  Facias  to  Revive  a  Judgment 324 

263.     Notice  of  Taxation  of  Costs 326 

204.     Cost  Bill  327 

265.  Stipulation  Extending  Time  to  Settle  Bill  of  Exceptions 32S 

266.  Order  Enlarging  Time  for  Filing  Bill  of  Exceptions 328 

267.  Order  Permitting  Defendants  to  File  Bill  of  E.Kceptions  after 

Time  Allowed    329 

268.  Order  Permitting  Bill  of   Exceptions  to   be   Prepared,  Agreed 

to  and  Settled,  after  Term 329 

269.  Bill  of  Exceptions— Introduction 330 

270.  Bill  of  Exceptions 332 


TABLE    OF    CONTENTS.  XIU 

Fonn  No.  Page 

271.  Bill  of  Exceptions  (Another  Form) 334 

272.  Certificate  of  Reporter  to  Testimony.- 335 

273.  Certificate  of  Judge  to  Bill  of  Exceptions 336 

274.  Certificate  of  Judge  to  Bill  of  Exceptions 337 

MANDAMUS 

275.  Petition  for  Writ  of  Mandamus  to  Compel  a  Municipality  to 

Levy  Tax  to  Pay  a  Judgment 3.38 

276.  Notice  of  Application  for  Writ  of  Mandamus 343 

277.  Petition   for   Writ   of  Mandamus   Directed   to  a  Judge   of   an 

Inferior  Court  to  Compel  Him  to  Allow  an  Appeal 344 

278.  Order  Granting  Alternative  Writ  of  Mandamus 346 

279.  Alternative    Writ   of   Mandamus   to   Compel   Levy   of   "tax   to 

Pay  Judgment  346 

280.  Answer  of  a   United  States  Judge  to  an  Alternative  Writ  of 

Mandamus  to  Allow  an  Appeal  from  an  Order  Refusing 

to  Confirm  a  Composition  in  Bankruptcy 34!) 

281.  Order  Sustaining  Demurrer  to  Defense  to  Alternative  Writ  of 

Mandamus     351 

282.  Order  Granting  Alternative  Writ  of  Mandamus  Directed  to  a 

District  Judge,  and  Stay  of  E.xecution 351 

283.  Order  for  Alternative  Writ  of  Mandamus  to  be  Directed  to  a 

Judge    353 

284.  Motion  for  Peremptory    Writ   of  Mandamus 354 

2S5.     Peremptory  Writ  of  Mandamus  Directed  to  Judge  of  District 

Court    355 

286.  Order  Making  Alternative  Writ  of  Mandamus  Peremptory. . .       358 

287.  Order  that  Marshal  Protect  Tax  Collector  in  the  Discharge   of 

His  Duty  359 

288.  Petition    for    Writ    of    Mandamus    to    Require    United    States 

Auditor  to  Pay  a  Judge's  Salary 361 

289.  Peremptory  Writ  of  Mandamus  to  United  States  Auditor 366 

290.  Marshal's  Return  of  Writ  of  Mandamus 368 

CONDEMNATION  PROCEEDINGS 

291.  Petition  to  Condemn  Land  for  a  Government  Lighthouse 369 

292.  Petition    to    Condemn   Land   by     United    States    for   a   Public 

Building   372 

293.  Petition  to  Condemn  Land  under  a  State  Statute  of  Eminent 

Domain    376 

293a.  Petition  for  Condemnation  of  Easement  over  Railroad  Property 
where   Already   Occupied    under    a    Contract   About   to 

Expire    382 

294.  Answer  and  Claim  for  Damages  in  Condemnation  Proceedings. .  388 

295.  Another  Form  of  Answer  and  Claim 390 


Xiv  TABLE   OF    CONTENTS. 

Form  No.  Page 

296.  Another  Form  of  Answer  and  Cliiim 393 

297.  Answer  to  Petition  to  Condemn   under  a  State  Statute 307 

298.  Reply  to  Answer   in  Condemnation   Proceedings 403 

209.     Judgment    of    Condemnation    and    Order   Appointing    Commis- 
sioners to  As8e.ss  Damages 404 

300.  Report  of  Commissioners  of  Damages 406 

301.  Judgment  for  Condemnation  and  for  Damages   (Jury  Waived).  408 

302.  Order  Directing  that  a  Jury  be  Empaneled  to  Assess  Compen- 

sation for  Property  to  be  Condemned 411 

303.  Order  Empaneling  Jury  to  Assess  Damages  in    Condemnation 

Proceedings     412 

304.  Writ    to    Conduct    Jury    to   View    Premises    in    Coi^demnation 

Proceedings     ; 413 

305.  United   States  Marshal's   Return   to   said   Writ 413 

306.  Judgment  of  no  Damages    in  Condemnation  Proceedings 414 

307.  Verdict  for  Damages  in  Condemnation  Proceedings 415 

DEPORTATION  OF  CHINESE 

308.  Complaint  for  Deportation  of  a  Chinese  Person 418 

309.  United  States  Commissioner's  Affidavit,  Complaint  or  Informa- 

tion for  Warrant 420 

310.  Order  Designating  United  States  Commissioner  to  Try  Chinese 

Person    421 

311.  Warrant  of  Arrest  and  Marshals  Return 421 

312.  United  States  Commissioner's  Warrant  to  Apprehend 422 

313.  United  States  Commissioner's  Subpoena 423 

314.  United  States  Commissioners  Temporary  Recognizance  for  Ap- 

pearance   before    Commissioner 423 

315.  Findings,  Judgment  and  Order  of  Deportation 426 

31G.     Entry   of   Deportation 428 

317.  Order  by  Judge  on  Appeal 420 

318.  J'etition  for  Appeal  from  Commissioner 430 

319.  Assignment  of  Errors  on  Appeal  to  District  Judge 431 

320.  Assignment  of  Errors  on  Ai)peal  to  District  Court 432 

321.  Citation  on  Appeal  from  Commissioner 438 

322.  United    States    Commissioner's    Transcript    of    Proceedings    in 

Criminal  Case    430 

322a.  Endorsement  and  Certificate 441 

323.  Certificate  to  Record  by  United  States  Commissioner 4^2 

324.  Order  Affirming  United  States  Commissioner 4-!2 

325.  Decree  Affirming  or  Reversing  Order  of  Deportation 4^3 

326.  Order  to  Remand  a  Chinese   Person  on   Petition   for  Writ   of 

Habeas   Corpus    444 

527.     Writ  of  Deportation  of  Chinese 446 

328.  Warrant  for  Arrest  of  Alien  under  Immigration  Act  of  1007..  447 

329.  Order  of  Deportation  of  Alien 448 


I 


TABLE    OF    CONTENTS.  XV 

Form  No.  Page 

330.  Application  for  Writ  of  Habeas  Corpus 449 

331.  Order  Allowing  \\rit   of  Habeas  Corpus 449 

331a.  Demurrer  to   Petition  for   Writ  of   Habeas  Corpus 450 

331b.  Order  Overruling  Demurrer  and  Ordering  Writ  to  Issue 450 

331c.  Stipulation    tiiat    Immigration   Record   and   E.xhibits   be   Filed 

and  Considered  Part  of  the  Petition  for  Writ  of  Habeas 

Corpus    451 

332.  Writ  of  Habeas   Corpus 451 

333.  Return  to  Writ  of  Habeas  Corpus 452 

334.  Hearing   on,   Writ   of  Habeas   Corpus,   Recognizance    Fixed   on 

Order    454 

335.  Recognizance    454 

336.  Leave  given  to   File  Reply — Order 455 

337.  Reply  to  Writ  of  Habeas  Corpus 455 

338.  Hearing  on  Application 459 

339.  Decree  Dismissing  Application  and  Remanding  Alien 459 

340.  Order    of    Discharge 460 

DEPOSITION  IN  SUITS  AT  LAW  AND  IN  EQUITY 

341.  Notice  of  Deposition  De  Bene  Esse 461 

342.  Subpoena  of  Witness  De  Bene  Esse 463 

343.  Caption  for  Depositions  De  Bene  Esse 463 

344.  Certificate  at  Close  of  Depositions  De  Bene  Esse 464 

345.  Letters   Rogatory    465 

346.  Letters   Rogatory    466 

347.  Order  for  Dedimus  Potestatem 467 

348.  Dedimus   Potestatem    469 

349.  Commissioner's  Return    470 

350.  Order  to   Show  Cause  Why  the  Time  for   Taking  Testimony 

Should  not  be  Extended 471 

Sill.     Order  Extending  the  Time  for  Taking  Testimony 471 

352.  Notice  of  Motion  for  Appointment  of  Special  Examiner 472 

353.  Order  Appointing  Special  Examiner 472 

354.  Consent  Order  to  Appoint  Examiner  to  Take  Deposition 473 

355.  Order  Appointing  Special  Examiner  under  Equity  Rule  47 473 

356.  Subpoena  for  Witness 474 

357.  Subpoena  Duces  Tecum 474 

358.  Writ  of  Attachment  against  Witness  for  Disobeying  Subpoena.  475 

359.  Notice  to  Take  Depositions  under  47th  Rule  in  Equity 475 

360.  Affidavit   of   Service    of   Notice 476 

361.  Commencement  for  Depositions  under  47th  Equity  Rule 476 

362.  Certificate  at  Close  of  Depositions  under  47th  Equity  Rule..  477 

363.  Transmission  of  Depositions 478 

364.  Motion  for  Leave  to  Withdraw  Depositions 479 

365.  Order  to  Withdraw  Depositions 479 

366.  Stipulation  as  to  Taking  Proofs 479 

367.  Motion  to  Strike  Out  Parts  of  a  Deposition 480 

368.  Motion  to  Suppress  Deposition. 480 


1 


XVI  TABLE   OF    CONTENTS. 

I 
SUITS  IN  EQUITY  FORMAL  PARTS  OF  A  BILL 

Form  No.  Page 

3G9.     Averring  Citizenship  where  Numerous  and  Diverse  Parties 482 

370.  Allegations  of  Citizenship  of  State  Public  Service  Commission.  483 

371.  Allegation    of   Citizenship    and   Amount    Involved    in    Suit   to 

Enjoin  Municipality  from  Collecting  Taxes 484 

372.  Allegation  of  State  Suing  as  Parens  Patriae 485 

373.  Averments  of  Citizens,  Complainants,  Citizens  and  Aliens 485 

374.  Averments   of   Citizenship   of   Defendants,   Trustees   m   Ba»k- 

ruptcy,  Foreign  Corporations  and  Alien 486 

375.  Allegations  of  Capacity  to  Sue  for  Indian  Tribes 487 

376.  Allegation  Showing  Why  Named  Persons  are  not  Made  Parties.  489 

377.  Prayer  for  the  Production  of  Deeds,  Papers,  etc 400 

.    378.     Prayer  for  an  Accounting  of  Money  Had  and  Received 400 

379.  Prayer  for  an  Accounting  Between  Partners 401 

380.  Prayer   for   Winding   up   a   Partnership 4t11 

381.  Prayer  for  an  Account,  and  Distribution 492 

382.  Prayer  for  an  Accounting  by  Agent 493 

383.  Prayer  for  an  Accounting  and  Injunction  to  Restrain  Cutting 
Lumber 493 

384.  Prayer  for  an  Accounting  and  Damages   for  Infringement  of 
Copyright    494 

385.  Prayer  for  Damages  against  Agent  for  Mismanagement 494 

386.  Prayer   for-  an    Accounting   for   Infringing    a    Patent    for   In- 
vention       494 

387.  Prayer  for  an  Accounting  of  Rents  and  Profits  of  Testator's 
Real   Estate 495 

388.  Prayer  for  an  Account  of  Personal  Estate  of  a  Testator 405 

389.  Prayer  in  Bill  to  Quiet  Title 406 

300.  Prayer  in  Bill  to  Quiet  Title 406 

301.  Prayer  for  the  Foreclosure  of  a  Mortgage 406 

392.  Prayer  for  Foreclosure  of  Mortgage 407 

393.  Prayer  to  Foreclose  a  Railroad  Mortgage  and  for  Injunction.  .  .  497 
304.     Prayer  for  Redemption  of  Mortgage — Mortgage  in  Possession  .  .  499 

395.  Prayer  for  Redemption  of  Personal  Property 500 

396.  Prayer  for  Injunction  (General  Form) 500 

397.  Prayer  for  Injunction  to  Restrain  City  from  Tearing  up  Rail- 
road Tracks    500 

398.  Prayer  for  Injunction  to  Enjoin  Mining 501 

399.  Allegations  in  Seeking  Injunctive  Relief  against  Rate  Order  of 
State  Public  Utilities  Commission 502 

400.  Prayer  for  Injunction  against  Infringement  of  Trade-mark  and 
Unfair  Competition   506 

401.  Prayer   for  an   Injunction   to   Restrain   Certifying   Assessment 
for  Taxation    508 

402.  Prayer  for  Injunction  to   Enjoin   Infringement   of   Patent  for 
Invention     509 


TABLE    OF    CONTENTS,  XVll 

Form  No.  Page 

403.  Prayer  for  Specific  Performance  of  Contract  to  !Make  a  Policy 

of   Insurance    509 

404.  Prayer    for   Specific    Performance    of    Agreement    to    Execute 

Mortgage  of  Indemnity 509 

405.  Prayer  for  Specific  Performance  of  Contract  for  Sale  and  Pur- 

cliase  of  Real  P^state 510 

406.  Prayer   for    Specific   Performance   of    Contract   by   Vendee    to 

Buy   Eeal  Estate 510 

407.  Prayer  for  Payment  of  Legacies  and  to  Carry  the  Trusts  of  a 

Will  into  Execution 511 

408.  Prayer  for  Kcformation  of  Deed  on  the  Ground  of  Mistake...  511 

409.  Prayer   for  Cancellation   of   Deed 511 

410.  Prayer  by  Next  of  Kin  for  Account  and  Distribution  and  to 

Restrain  Sale  512 

411.  Prayer  for  Cancellation  of  Land  Patent  and  Deeds 512 

412.  Prayer  to  Have  Trust  Declared  as  to  Personalty 512 

413.  Prayer  to  Have  Trust  Declared  as  to  Real  Estate 513 

414.  Prayer  to  Have  Trust  Declared  as  to  Real  Estate 513 

415.  Prayer  for  Injunction  against  Proceeding  at  Law — Declaration 

of  Trust — Conveyance  514 

416.  Prayer   for  Attorney's   Fees ol4 

417.  Prayer  in   Bill   of   Interpleader 515 

418.  Prayer  in  Bill  of  Interpleader  by  an  Executor 515 

419.  Prayer  for  a  Guardian  Ad  Litem 516 

420.  Prayer  for  a  Conveyance  and  Deed  by  Special  Master 516 

421.  Prayer  for  Writ  of  Ne  Exeat 516 

422.  Prayer  for  Writ  of  Certiorari 516 

423.  Prayer  for  Subpoena 517 

424.  Prayer  for  Process  wliere  the  Government  is  a  Defendant....  517 

425.  Signature  of  Bills 518 

426.  Verification  by  Ofl^icer  of  Corporation  Plaintiff 518 

427.  Verification    by    Copartnership 519 

428.  Verification  of  Amended  Intervening  Petition  and  Cross-Peti- 

tion      520 

429.  Verification  of  a  Member  of  a  Partnership 520 

430.  Verification   by  a    Solicitor 521 

BILLS  IN  SPECIAL  CASES 

431.  Bill  to  Restrain  Disclosures  and  Use  of  Trade  Secrets 522 

432.  A  Bill  by  Creditor  Praying  tlie  Appointment  of  a  Receiver....  528 

433.  Stockholder's  Bill  against  Building  Association 534 

434.  Stockholders   against   Corporation   and   Officers  Charging   Con- 

spiracy to  Injure  the  Corporation 537 

435.  Creditor's  Bill  against  a  Corporation  and  its  Stockholders   to 

Enforce  Statutory  Liability 544 

436.  Bill   to  Enforce  Statutory  Liability   of  a   Stockholder  against 

Real  Estate  in  a  Foreign  Jurisdiction 548 


XVI 11  TABLE    OF    CONTENTS. 

Form  No.  Page 

437.     For  a  Dissolution  of  a  Partnership 555 

4.38.     For  an   Account  of   Partnership  Dealings  after  a  Dissolution, 

and  for  a   Receiver 558 

439.  Foreclosure  of  Mortgage 560 

440.  Bill  to  Foreclose  a  Railway  Mortgage , 562 

441.  To  Have   Goods   Redelivered,  which   Have   Been   Deposited  as 

a  Security  for  Money  Lent 576 

442.  To  Redeem  by   Purchaser  of  an  Equity   of  Redemption  from 

the  Assignee  in  Insolvency  of  the  Mortgagor 577 

443.  By  Husband  of  Legatee  against  Executor .581 

444.  On  Behalf  of  Infant  Legatees 582 

445.  By  an  Executor  and  Trustee  under  a  Will,  to  Carry  tlie  Trusts 

Thereof  into   Execution 585 

446.  To  Cancel  a  Written  Instrument — A  Bill  of  Exchange 589 

447.  Suit    to    Determine    Legality    of    Municipal    Bonds    and    for 

Specific  Performance  and  other  Relief 593 

448.  To  Reform   a  Policy  of  Insurance 599 

449.  To  Cancel  Decree  of  Naturalization 603 

450.  For  Specific  Performance  of  a  Lease 608 

451.  For  Cancellation  of  Land  Patent 616 

452.  To  Remove  a  Cloud  on  the  Title   (Amended  Bill) 625 

453.  For  Lien  on  Cattle  and  Decree  of  Sale 627 

454.  To  Enforce  a  Lien  against  a  Distillery 631 

455.  Of    Interpleader.      (Old    English    Form.)       Bill    by    a    Lessee 

against  Different  Persons^  Claiming  the  Rents  by  Differ- 
ent Titles,  to  Have  them  Interplead 633 

4r)6.     Stipulation   for  Interpleader 636 

457.  Order  to  Interplead,  etc 637' 

458.  Interplea  in  Suit  on  Promissory  Notes 637 

459.  Prayer  of  a  Bill  of  Interpleader 641 

460.  Form  of  Affidavit  to  be  Annexed  to  a  Bill  of  Interpleader 642 

461.  Another  Form  of  Affidavit 643 

462.  Still   Another  Form 643 

463.  Against  an   Agent   for   Mismanagement 644 

464.  Bill  to  Enjoin  a  Combination  under  Sherman  Anti-Trust  Act.  .  647 

465.  To    Permit    One    Comjjetitor    to    Sell    Out    to    Another,    Both 

Having  Previously  Been  Found  Guilty  of  Violating  the 

Sherman   Law    660| 

466.  To  Enjoin  the  Obstruction  of  a  River 676' 

467.  Bill  to  Enjoin   the  Certification  of  Value   of  Telephone  Com- 

pany   for    Taxation 678 

468.  Bill  by  a   Telephone   Company  to   Enjoin   a   Competitor  from 

Connecting  with  its  Devices 695 

469.  Bill  to  Enjoin  the  Transfer  of  Title  to  Patents  under  a  Part- 

nership  Agreement    698 

470.  Bill  to  Enjoin  Railroads  from  Refusing  to  Receive  Freight  from 

Connecting  Lines    703 


TABLE    OF    CONTENTS.  XIX 

Form  No.  Page 

471.  Where   Carrier  Refuses   to  Accept   Goods   in   Interstate   Com- 

merce           708 

472.  Where  Railway  Refuses  to  Carry  Liquor  into  Dry  Territory..       716 

473.  Amendment    to    Bill    to    Enjoin    a    Strike,    Bringing    in    New 

Parties   727 

474.  Bill   in  Equity  to   Subject   Property   of   Absent  Defendant   to 

Pay  a  Judgment 731 

475.  W^here   Postmaster   Excludes   Mail   Matter   under   the    Act   of 

June  15,  1917,  40  Stat.  L.,  230 733 

476.  To  Enjoin  Enforcement  of  Order  of   State  Railway  Commis- 

sion            737 

477.  Suit  by  Trustee  Against  Bankrupts 748 

478.  Bill   by   the   United   Staates  for  Decree   of  no  Interest  where 

Land   W^rongfully   Patented 754 

479.  To  Decree  an   Alley  to  be   Private   Property,  to   Remove  Ob- 

structions, and  to  Cancel  a  Deed  Thereto 758 

480.  Suit  by  Infant  by  Prochein  Ami  for  Accoimting  and  Payment 

Over  under  a  Trust 764 

BILLS  NOT  ORIGINAL 

481.  Bill    to    Declare    Present    and    Future    Acquired    Property   of 

Street  Railway  Subject  to  a  Trust  Deed 769 

482.  Petition   for  Leave  to  File  Supplemental  Bill 782 

483.  Order  to  File  Supplemental  Bill  of  Complaint 782 

484.  Supplemental  Bill   783 

485.  Supplemental    Bill   against   the    Trustee    of    a    Bankrupt    De- 

fendant           788 

486.  Supplemental  Bill  to  an  Original  and  Amended  Bill  Filed  by  a 

Lessee  for  the  Specific  Performance  of  an  Agreement  to 
Grant  a   Further  Lease 789 

487.  Supplemental  Bill  in  a  Patent  Case 790 

488.  To  Perpetuate  Testimony 790 

489.  Receiver's  Supplemental  and  Ancillary  Bill  to  Enjoin  Suit  in 

State  Court — Conflict  of  Jurisdiction 792 

490.  Ancillary  Bill  by  Defendant  in  Pending  Suit  at  Law  for  Money, 

to    Determine    Conflicting    Claims,    Plaintiff    Admitting 
Possession  in  Itself 797 

491.  Of  Revivor  (Before  Decree)  by  l!ie  Administrator  of  the  Plain- 

tiff in  the  Original  Suit 807 

492.  Bill  of  Revivor  in  Patent  Suit 809 

493.  Of   Revivor   and   Supplement   where  Both    Parties   in   Original 

Bill  are  Deceased 813 

494.  Of  Review  to  Examine  and  Reverse  a  Decree 815 

495.  J'etition  to  Appellate  Court  for  Leave  to   File   Bill  of  Review 

for  New  ^Matter  in  Court  Below 816 

496.  Petition  for  Leave  to  File  a  Bill  of  Review  for  New  Matter. .       821 


XX  TABLE    OF    CONTENTS. 

Form  No.  Page 

45)7.     Bill  of  Review  for  New  Matter 822 

498.  To  Suspend  a  Decree 824 

499.  To  Set  Aside  a  Decree  Obtained  by  Fraud 826 

500.  Cross-Bill   (General  Form) 829 

SUBPOENAS 

501.  Subpoena  in  Chancery  (Under  Former  Rules) 830 

502.  Subpoena  and  Return   (Under  Present  Rules) 8.30 

503.  Subpoena   (Another  Form)   with  Memorandum  Thereon  Noting 

Answer  Day  and  Return 832 

603a.  Return  on  Service  of  Writ 833 

504.  Return  of  Subpoena  by  Marshal 834 

505.  Service   by   Publication 835 

506.  Subpoena  to  Testify  in  District  Court 835 

507.  Subpoena  Duces  Tecum  to  Testify  in  Court 83G 

608.     Subpoena   Duces   Tecum   to   Testify   before   a   Master   or   Ex- 
aminer      836 

DEMURRERS 

509.     Demurrers  are  Abolished  by  Equity  Rule  29 838 

PLEAS 

610.     Pleas  are  Abolished  by  Equity  Rule  29 838 

ANSWERS 

511.  The  Commencement   838 

512.  Same,  where  there  is  Only  One  Defendant  to  an  Original  Bill.  838 

613.  Same,  by  an  Infant 838 

614.  Same,  by  Husband  and  Wife 839 

515.  Another  Form   by  Husband  and  Wife 839 

516.  Same,  where  the  Bill  Misstates  the  Names  of  Defendants 839 

517.  Same,   by  a  Lunatic  or  Idiot,   etc 839 

618.     Same,  by  Wife  Separately  under  an  Oath 840 

519.  Verification  of  Answer 840 

COMMON  FORMS  USED  IN  FRAMING  ANSWERS 

520.  Accounts — Reference  to  Book  Containing  thom 841 

521.  Accounts  Refused,  as  Being  Useless  before  Decree 841 

622.  Admission  for  Purposes  of  the   Suit 841 

623.  Claims   jVlade   by   Defendant 842 

624.  Craving  Leave  for  Greater  Certainty 843 

625.  Craving  Leave  to  Refer  to  Codefendant's  Answer 843 

626.  Information    and    Belief 843 

627.  Ignorance   844 


TABLE    OF    CONTENTS.  XXI 

Form  No.  Page 

528.     Qualified    Denial    844 

521).     Reference  to  Schedule 844 

5.30.     Release,  Craving  same  Benefit  as  if  Pleaded 845 

531.  Settled    Accounts— Claim    of 845 

532.  Submission  by  Trustees  to  Act 845 

533.  Traverse    845 

534.  Trustee — Desire  to  be  Discharged 846 

535.  Vexatious  Suit — Settled  Accounts 846 

536.  Want  of  Interest  in  Plaintiff 846 

537.  Claim  of  Benefit  of  same  Defense  to  Amended,  as  to  Original 

Bill    847 

538.  Answer  of  an  Executrix   Submitting  to  Act  under  Indemnity 

of   the   Court 847 

539.  Answer  of  tiie  Executors  of  a  Deceased  Acting  Executor  to  a 

Bill  of  Revivor 848 

540.  Answ  er  of  a  Widow  Electing  to  Take  the  Bequests  Made  to  Her 

by  a  Will,  and  to  Release  All  Interest  in  the  Devised 

Estates     850 

511.     Answer  to  a  Bill  Charging  Infringement  of  a  Patent 851 

542.  Answer  to  Bill  to  Enjoin  Transfer  of  Patents 851 

543.  Answer  in  Case   of  Copyright  Infringement 854 

544.  Cross-Bill  at  the  End  of  an  Answer 867 

545.  Allegations  of  no  Jurisdiction  in  the  Answer 876 

546.  Answer  of  Railway  in  tlie  Hands  of  Receivers 878 

547.  Answer  of  Receivers  of  Railway 879 

548.  Amended    Answer    of    Street    Railway    Avhere    Receiver    is    in 

Charge,   Adopting   Answer   of   Receiver 882 

549.  Answer  of  Defendants  and  Interveners 883 

550.  Supplemental  Answer    889 

551.  Second  Amended  Answer 890 

552.  Allegations    in   Answer   of   Denial   of   Jurisdiction    in    Federal 

Court,   no   Federal   Question,   and   not   Requisite   Juris- 
dictional Amount   892 

5r)3.     Denial  of  Jurisdiction  of  Federal  Court  to  Enjoin  State  Rail- 
way Commission  892 

554.     Prayer  that  Answer  be  made  a  Cross-Bill 893 

655.     Answer  to  Amendment  to  Bill  Filed  after  Answer  to  Original 

Bill  under  Consent  of  Defendant 894 

556.  Answer  to  Interplea 894 

557.  Joint  Answer  of  City,  City  Treasurer,  and  Holder  of  Certificates 

of  Indebtedness   897 

6.')8.     Stipulation  Waiving  Answer  and  Nunc  Pro  Tunc  Agreement  as 

to  Filing  the  same 900 

>.  559.'    Averments  in  the  Answer  in  Place  of  Motions 900 

500.  Amendment  to  Answer  as  Amended 901 

501.  Defense  of  Prior  Suit  in  State  Court  and  Formation  of  Corpora- 

tion for  Purposes  of  Federal  Suit 902 


XXll  TABLE    OF    CONTENTS. 

Form  No.  Page 

502.     Answer  and  Cross-Petition  of  Holders  of  Bonds  of  Corporation 

in'  tlie  Hands  of  Receiver 005 

r)63.  Order  Granting  Leave  to  Intervene  and  that  Petition  of  Inter- 
vention be  Considered  as  Answer  to  Complainant  and 
Cross-Bill   to  Another  Intervenor 907 

664.  Petition  of  Intervention  Considered  as  Answer  and  Cross- 
Bill    908 

565.  Allegation   in  Answer  Denying  Jurisdiction  and  Praying  Dis- 

missal          917 

566.  Defense  of  Res  Ad  judicata  Both  in  State  and  Federal  Courts.  .       918 

EXCEPTIONS 
.'567.     Exceptions  are  Abolished  by  Equity  Rule  33 919 

DISCLAIMER 
668.     General  Form 920 

REPLICATION 
56n.     Replications  are  not  Required  under  the  Present  Equity  Rules.       920 

NOTICES,  MOTIONS,  ORDERS,  DECREES,  ETC. 

570.  Notice  to  Codefendants  to  Join   in  Appeal 921 

571.  Affidavit  of  Service  by  One  not  an  Officer 921 

.'572.  Notice  of  Motion  to  Dismiss  Because  no  Diversity  of  Citizen- 
ship       922 

573.  Notice   of   Motion   to   Advance   Cause 923 

573a.  Writ  to  Serve  Copy  of  Notice  to  Advance,  and  Marshal's  Re- 
turn Tliereon   924 

574.  Notice  of  Motion  to  Strike  Out  Parts  of  the  Answer 925 

575.  Notice  of  Application  for  Trial 926 

576.  Notice  of  Final  Hearing 926 

577.  Motion  for  Severance  on  Appeal 927 

578.  Motion  on  Special  Appearance  to  Quash  Subpoena 928 

579.  Motion  by  Defendant  that  the   Defenses  in   Point  of  Law  be 

Separately  Heard  and  Disposed  of  before  the  Trial,  and 

to  Dismiss  the  Bill  as  to  Defendant 928 

580.  Motion  to  Make  New  Parties  Defendant,  for  Personal  Service 

on  Absent  Defendants,  and  Affidavit  of  Solicitor 929 

581.  Order  Making  New  Parties  Defendant,  Authorizing  Service  on 

Absent   Defendants,  etc 931 

582.  Motion  to  Dismiss  for  Insufficient  Facts  and  for  Nonjoinder 

of  Plaintiffs  and  Defendants 935 

583.  Motion  for  Leave  to  File  Bill  in  Equity  in  the  Supreme  Court 

of  the  United  States 935 

684.    Motion  for  Preliminary   Injunction ; . .       936 


TABLE    OF    CONTENTS.  XXlll 

Form  No.  Page 
585.     Motion  Suggesting  Appointment  of  New  District  Attorney  and 

Asking  His  Substitution  in  the  Case .  9:57 

580.     Motion   for  Additional   Security   for  Costs i).37 

587.     Cost  Bond 038 

688.  Appearance    038 

689.  Order  Associating  Counsel  for  tlie  Defendant fl38 

590.  Order  to  Take  Bill  Pro  Confesso 938 

591.  Consent  to  Take  Bill  Pro  Confesso 939 

692.  Decree   Pro   Confesso 939 

693.  Decree  Pro  Confesso  Sustaining  Patent 940 

694.  Motion  to  Vacate  a  Decree  Pro  Confesso 940 

595.  Order  Vacating  a  Decree  Pro  Confesso 940 

596.  Order  for  Attachment  to  Compel  Answer 941 

597.  Attachment    to    Compel   Answer 941 

598.  Praecipe  for  Copy 942 

599.  Order  to  Stand  Over  to  Add  New  Parties 942 

600.  Order  to  Stand  Over  to  Supply  Proofs 942 

601.  I'etition  by  Infant  for  Appointment  of  a  Guardian  Ad  Litem. .  943 

602.  Petition  by  Plaintiff  for  Appointment  of  Guardian  Ad  Litem 

for  an  Infant  Defendant 943 

603.  Petition  for  the  Appointment  of  a  Guardian  Ad  Litem.    Notice 

and  Consent  to  Such  Appointment 944 

604.  Order  Appointing  Guardian  Ad  Litem  of  Defendant 945 

605.  Order  Appointing  Guardian  Ad  Litem  by  Consent 946 

606.  Answer  of  Infant  by  Guardian  Ad  Litem 946 

607.  Motion  to  Amend  Bill  of  Complaint  by  Crossing  Out  Original 

and  Inserting  Amended  Bill 947 

608.  Motion  to  Amend  Amended  Bill  of  Complaint  by  Striking  Out 

Words  and  Inserting  Others 947 

609.  Motion  to  Amend  Bill  by  Adding  Defendant 947 

610.  Motion  to  Amend  Bill  by  Inserting  Matter 948 

611.  Nunc  Pro  Tunc  Order  Permitting  an  Amendment  to  Bill 948 

612.  Motion  to  File  a  Second  Amended  Bill 949 

613.  Order  Granting  Leave  to  File  Amended  Bill '. 949 

614.  Order  for  Leave  to  Amend  Bill 949 

615.  Amendment   to  a  Bill 950 

616.  Motion  by  Plaintiff  to  Dismiss  His  Bill  with  Costs 950 

617.  Motion  by  Party  Late  an  Infant,  on  Coming  of  Age,  to  Dis- 

miss Bill  with  Costa,  before  Decree 951 

618.  Motion  for  Judgment  on  Pleadings 951 

619.  Order  Granting  Motion  for  Judgment  on  Pleadings 952 

620.  Motion   to   Strike   for  Insufficient   Facts 952 

621.  Motion   to   Dismiss   for  Insufficient   Facts,   a   Remedy  at  Law 

and  no  Jurisdiction 9.53 

622.  Motion    to    Dismiss    Bill    of    Complaint    for    Infringement    of 

Copyright    953 


XXIV  TABLE   OF    CONTENTS, 

Form  No.  Page 

(i23.  Motion  to  Dismiss  for  no  Equity,  Misjoinder,  Nonjoinder,  Limi- 
tations of  Statute,  Uncertainty,  etc 955 

C24.     Informal  Motion  and  Decree  Dismissing  Bill  in  Open  Court,  and 

Notice  of  Exceptions 958 

625.     Motion  in  Answer  to  Dismiss  for  no  Unconstitutionality  Shown, 

no  Federal  Jurisdiction,  etc 958 

620.     Motion  to  Dismiss  Intervening  Petition 960 

627.  Order  Overruling  Motions  to  Dismiss  Intervening  Petition...  960 

628.  Motion  to  Dismiss  Bill  Asking  for  Receiver 961 

629.  Motions  for  Various  Purposes  made  on  Hearing  Informally...  961 

630.  Motion  to  Dismiss  made  on  Special  Appearance 963 

631.  Separate  Motion  of  Defendant  Railway  to  Dismiss 965 

632.  Motion    to    Dismiss    Suit    by    Individual   against    the    United 

States     968 

633.  Motion  to  Vacate  Preliminary  Injunction  in  Part 968 

634.  Motion  to  Vacate  Order  Allowing  Fees 969 

635.  Order  to  Withdraw  Answer  to  have  it  Sworn  to  by  Defendant .  970 

636.  Motion  to  Amend  Answer 970 

637.  Motion  for  Leave  to  Amend  an  Answer  by  Consent 971 

638.  Motion  to  Amend  Answer  with  Notice  Accepted 971 

639.  Order   Granting   Leave   to   File   Amended   Answer   and   Fixing 

Time    for    Testimony 972 

640.  Amended   Answer    972 

641.  Motion  for  Leave  to  File  Supplemental  Answer  by  Consent...  973 

642.  Supplemental   Answer    973 

643.  Order  Extending  Time  to  Answer 974 

644.  Entry  of  Consolidation  of  Suits 974 

645.  Order  (Granting  Leave  to  Intervene 975 

646.  Order   Denying  Application  to  Intervene 976 

647.  Motion   for   Leave   tp   Intervene 976 

648.  Order  Denying  Petition  to  Intervene    (Another  Form) 979 

649.  Order  Allowing  Petition  to  Intervene   (.\nother  Form) 979 

650.  Petition  of   a  City  Intervenor 980 

651.  Petition  of  Intervention 982 

652.  Motion  to  Assign  Time  within  which  Parties  shall  Take  Evi- 

dence     983 

663.     An  Order  Assigning  Time  within  which  to  Take  Testimony...  984 

654.  Order  Allowing  Testimony  by  Depositions 984 

655.  Order  Allowing  Particular  Deposition  to  be  Taken 985 

656.  Order  Preserving  Oral  Testimony  Taken  in  a  Suit  in  Equity. . .  986 
057.     Stipulation  to  Read  Depositions  Taken  in  Another  Case 980 

658.  Motion  to  Take  Additional  Testimony 987 

659.  Order  to  Reopen  Case  and  Take  Further  Testimony 987 

660.  Order  Suppressing  Notice  of  Taking  Testimony 988 

661.  Order  Fixing  Time  within  which  to  File  Briefs 988 

662.  Stipulation  to  Submit  Cause  on  Printed  Briefs 989 

663.  Motion  to  Enter  a  Decree  Nunc  pro  Tunc 989 


TABLE   OF    CONTENTS.  .XXV 

Form  No.  Page 

664.  Motion  to  Rectify  a  Decree  or  Order 1)89 

665.  Motion  for  Decree  on  Mandate 090 

666.  Order  Directing  that  Mandate  of  Circuit  Court  of  Appeals  be 

Spread  of  Record,  and  other  Orders  Consequent  There- 
upon      091 

667.  Petition  for  New  Trial 992 

668.  Order  Denying  Motion  for  Rehearing 993 

669.  Motion  to  Retax  Costs 99.3 

670.  Cost  Bill   994 

671.  Final  Record  in  E(iuity 994 

672.  Order  JNlaking  Fidelity  Title  and  Trust  Company  a  Party  Plain- 

tiff, etc 995 

673.  Order  Making  Additional  Parties  Defendants 996 

674.  Kunc  pro  Tunc  Order  Admitting  Defendants 997 

675.  Order  Granting  Leave  to  Intervene  and  File  Answer  and  Cross- 

petition  998 

676.  Ordei  Overruling  Motion  to  Strike  Joint  Answer  of  Defendants 

and  Intervenors 998 

677.  Order  of  Severance   999 

678.  Writ  of  Possession  or  Assistance 1000 

679.  Final  Decree  Dismissing  Bill 1001 

680.  Decree  of  Dismissal  of  Bill   (Another  Form) 1001 

681.  Decree  of  Dismissal  without  Prejudice,  Stating  Reasons 1002 

682.  Decree  Dismissing  Bill  with  Prejudice 1002 

683.  Order  Sustaining  Motion  to  Dismiss,  and  Decree  of  Dismissal..  1003 

684.  Order  Dismissing  Complaint  upon  Special  Appearance  to  Object 

to  Jurisdiction  1004 

685.  Decree  Dismissing  Parties  Defendant  before  Hearing 1004 

686.  Decree  for  Amount  Due  under  a  Contract  and  Creating  a  Lien 

on  Property  to  Secure  the  Same 1005 

687.  Decree  Vesting  Title  Subject  to  Easement  for  Alley  Purposes, 

and  Enjoining  from  Obstructing,  etc ; 1009 

688.  Decree  Cancelling  Release  from  Liability  for  Personal  Injury. . .  1009 

689.  Decree  Removing  Cloud  upon  Title 1010 

690.  Order  Directing  that  Certain  Records  of  a  Xamed  State  Court 

be  Filed  and  Made  a  Part  of  the  Record  in  a  Suit  Pend- 
ing in  Federal  Court 1011 

691.  Order   Designating  and   Appointing  Judge   in   One   District   to 

Hold  Court  in  Another  District,  and  Certificate  Thereto. .  1013 

692.  Order  to  Draft  Board  to  Show  Cause 1014 

693.  Order  Appointing  Commissioners  to   Partition 1015 

694.  Order  Enjoining  Transfer  or  other  Disposition  of  Bonds 1015 

695.  Order  Modifying  Injunction  Order 1016 

696.  Order  to  Show  Cause  Wliy  Certain  Matter  Should  not  be  Trans- 

mitted Through  the  Mails 1017 


XXVI  TABLE    OF    CONTENTS. 

Form  No.  Page 

697.  Order  to  Show  Cause  against  Postponement,  Issue  of  Prelimi- 

nary Injunction  and  Delivery  of  Data  into  Custody  of 

Court 1018 

698.  Decree  Rescinding  Contract  for  Fraud 1019 

699.  Decree  for  Specific  Performance  of  Agreement  for  Policy  of 

Insurance 1021 

700.  Entry  Reversing  Decree 1022 

701.  Decretal  Order  Appointing  Special  Master , 1023 

702.  Decree  with  Order  on  Receiver  to  Pay  over  Funds 1023 

703    Decree  for  Plaintiff  on  Bill  to  Enjoin  the  Transfer  of  Title  in 

Patents  by  a   Copartner 1024 

703a.  Decree  for  Property  under  a  Will  and  Reference  to  Master.  . .  .  1027 

704.  Decree  on  Bill  of  Interpleader 1028 

705.  Decree  on  Stockholders'  Petitions  in  a  Suit  against  a  Building 

Association    1030 

706.  Decree  in  Stockholders'  Suit  against  Buihling  Association 1033 

707.  Decree  Dissolving  Restraining  Order  and  Refusing  Leave  to  In- 

tervene by  Purchaser 1036 

708.  Decree  for  the  Plaintiff  with  Lien  and  Order  for  Sale 1038 

709.  Interlocutory  Decree  Granting  Permanent  Injunction  and  Ap- 

pointing Special  Master   1039 

710.  Decree  Embodying  Findings  of  Fact  and  Conclusions  of  Law, 

Granting  Injunction  1040 

711.  Interlocutory  Decree  in  Suit  Involving  Water  Rights 1043 

712.  Final  Decree  in  Copyriglit  Infringement 1045 

713.  Final  Decree  wliere  Trustee  Sues  for  Mortgage  Bondholders. . . .  1047 

714.  Decree  of  Foreclosure  of  a  Railroad  Mortgage 1054 

715.  Order  of  Delivery  of  Property  to  Reorganized  R.  R.  Co 1070 

716.  Decree  Confirming  Master's  Sale  and  Ordering  Conveyance  and 

Possession  of  a  Railroad  Property 1073 

717.  Decree  Quieting  Title  1085 

718.  Decree  Subjecting  Absent  Defendant's  Property  to  Payment  of 

Judgment    1087 

719.  Order  of  Distribution  1088 

720.  Decree  Awarding  Perpetual  Injunction  Restraining  Municipal- 

ity from  Interfering  with  Telephone  Company 1088 

721.  Decree  Confirming  Sale  Ordering  Deed  and  Writ  of  Possession. .  1090 

STIPULATIONS— MISCELLANEOUS 

722.  Stipulation  Concerning  Facts,  Procedure.  Costs,  etc 1091 

723.  Stipulation  Concerning  Facts,  but  Limiting  Their  Use 1003 

724.  Stipulation  Concerning  Facts  and  Exhibits  in  Unfair  Competi- 

tion Case 1094 

725.  Stipulation  for  Continuance  of  Case 1096 

726.  Stipulation   for   Cliange   of  Venue,  Waivin<<   Issuance   of  Sub- 

poena, for  Procedure,  etc 1096 

727.  Stipulation  Amending  Bill  1098 


TABLE   OF    CONTENTS,  XXVll 

PROCEEDINGS   BEFORE   A    MASTER 

Form  No.  Page 

728.  Motion  for  Appointment  of  Master  to  Report  on  Evidence .  10!)!) 

729.  Motion  to  Refer  Intervention  to  Special  Master 10!)9 

730.  Order  Appointing  Master  to  Report  on  Evidence 1090 

731.  Order  Appointing  Special  Master  to  Report  on  Strike 1100 

732      Order  Appointing  Master  to  Determine  Amount  Due 1100 

733.  Stipulation  as  to  Special  Master 1101 

734.  Order  Appointing  Special  Master 1101 

735.  Order  Appointing  Special  Master  to  Hear  and  Report  on  Cer- 

tain Cliiims 1102 

736.  Order  -Appointing  Master  in  Chancery  Pro  Hac  Vice 1103 

737.  Oath  of  Special  Master 1103 

738.  Cieneral  Notice  for  Proceedings  before  Master 1104 

739.  Master's  Warrant  or  Summons 1104 

740.  Order  to  Master  to  Report  Testimony 1105 

741.  Motion  before' Master  for  Order  Requiring  Defendant  to  Submit 

a  Report  in  Accounting 1105 

741a.  Order  of  the  Master  Tiiereon 1107 

742.  Affidavit  of  Defendant  Siiowing  Progress  of  Compiling  Report 

in  Accounting  before  Master 1109 

743.  Stipulation  for  Taking  Depositions  in   other  Jurisdictions  for 

Use  before  Master  in  Accounting 1110 

744.  Notice  during  Proceedings  before  Master  of  Motion  in  District 

Court   for   Order   Requiring   Witness   before   Master   to 

Testify   1110 

745.  Notice  during  Proceedings  before  Master  of  Motion  in  District 

Court  for  Order  Requiring  Production  of  Books  before 

a  Master  1111 

746.  Notice  of  Motion  to  Take  Surrebuttal  Testimony  before  Master 

in  Accounting,  and  Objections  to  Motion 1111 

747.  Motion  to  Take  Surrebuttal  Testimony  before  Master  in  Ac- 

counting     1112 

748.  Objections  to  the  Above  Motion 1112 

749.  Interrogatories  for  Examination  of  Witnesses  before  a  Master.  1113 

750.  Interrogatories  in  Accordance  with  Equity  Rule  58 1114 

751.  Report  of  Special  Master 1118 

752.  Master's  Report   1119 

753.  Report  of  Master — Introduction   (Another  Form)    1119 

754.  Notice  Accompanying  Draft  of  Master's  Report 1120 

755.  Exceptions  to  Master's  Report 1121 

756.  Exceptions  to  Report  of  Special  Master 1121 

757.  Exceptions  to  Master's  Report  and  Motion  for  .Allowance  (An- 

other Form )    1122 

758.  Receiver's  Exceptions  to  Master's  Report  because  of  His  Lack 

of  Authority 1123 

759.  The  Plaintiff's  Exceptions  to  the  Report  of  the  Master  on  Ac- 

countinjr    1125 


XXVIU  TABLE   OF    CONTENTS. 

Form  No.  Page 

760.  Exceptions  to  Report  of  Special  Master  (Another  Form) 1126 

761.  Order  Granting  Leave  to  Amend  J-^xceptions  to  Master's  Report.  1127 

762.  Plaintiff's  Adoption  of  Exceptions  by  Receiver  to  Master's  Re- 

port      1127 

763.  Master's  Report   in  Accounting   in   Suit   for  Infringement   of 

Patent    1128 

764.  Statement  by  Master  of  Objections  to  His  Report  (In  the  Re- 

port)   1129 

765.  Return   of  Master   in  Accounting   for  Infringement  of  Patent 

(At  End  of  tlie  Report) 1129 

766.  Notice  of  Hearing  on  Objections  to  Master's  Report 1130 

767.  Decree   on  Master's   Report,  Where   Suit   for  Infringement  of 

Patent    , 1131 

768.  Final  Decree  on  Master's  Report 1 132 

769.  Final  Decree  on  Master's  Report 1 132 

770.  Reference  to  a  Master  in  Special  Cases • 1133 

771.  Contempt  Proceedings 1 133 

RECEIVERS 

772.  Bill  of  Judgment  Creditor  Praying  the  Appointment  of  a  Re- 

ceiver      1 1.34 

773.  Bill  for  the  Foreclosure  of  a  Railway  and  Appointment  of  Re- 

ceiver      1 134 

774.  Prayer  for  Receiver  of  Irrigation  System 1134 

775.  Allegations  Showing  Equity  Juripdiction  and  Asking  for  a  Re- 

ceiver by  a  Holder  of  Corporation  Notes 1137 

776.  Bill  for  an  Account  of  Partncrsliip  Dealings  and  Dissolution, 

and  for  a  Receiver 1 1 43 

777.  Affidavit  of  Insolvency  in  Support  of  Bill 1 143 

778.  Order  Taking  Jurisdiction  and  Fixing  Day  for  Hearing 1144 

779.  Notice  of  Application  for  the  Appointment  of  a  Receiver 1145 

780.  Motion   for  the   Appointment   of   Receiver  to   Take  Charge   of 

Mortgaged  Projjcrty,  Collect  Rents,  etc 1146 

781.  Order  Concerning  Application  for  Receiver  and  Extending  Time 

to  Answer,  etc 1 146 

782.  Entry  of  Appearance  and  Answer  1 147 

783.  Petition  for  the  Appointment  of  a  Receiver  and  for  an  Order  of 

Court  Directing  the  Production  of  Oil  and  Gas  from  the 

Real  Property  Involved  in  this  Suit 1 148 

784.  Order  Appointing  Temporary  Receiver 1 154 

785.  Order  Appointing  Receiver  for  a  Railway 1 150 

786.  Order  Appointing  a  Receiver  for  a  Railroad  (Another  Form)  .  .  .  1102 

787.  Order  Appointing  Receivers  of  Kansas  Natural  Gas  Company.  .  11  OH 

788.  Order  Appointing  Receiver  with  Power  to  Collect  Rents 1173 

789.  Order  Extending  the  Receivership 1 174 

700.     Order  to  File  Amendment  and  Extending  Receivership 1177 

791.     Order  Appointing  Receiver  for  a  Manufacturing  Corporation. . .  1178 


TABLE    OF    CONTENTS.  XXIX 

Form  No.  Page 

7'J2.  Motion  to  Require  Clerk  of  District  Court  Appointing  a  Re- 
ceiver to  File  Certified  Copy  of  Bill  and  Order  in  other 
Districts  1179 

793.  Order  Concerning  Resignation  of  Receiver 1180 

794.  Order  Accepting  Resignation  of  One  Coreceiver,  Making  other 

Sole   Receiver,   etc.,   Property   Being    in    Three   Judicial 
Districts   1181 

795.  Order  to  Receivers  Concerning  Collection,  Deposit  and  Checking 

Out  Moneys   1 183 

796.  Order  Allowing  Claims  Approved  by  Receiver 1183 

797.  Order  Making  Allowances  in  Receivership 1184 

798.  Entry  ot  Order  Appointing  Receiver  for  Manufacturing  Com- 

panj',    Directing   Transfer   of   Property   to   Him,   Desig- 
nating His  Counsel,  etc 118.5 

709.     Judge's  Fiat  Appointing  Receiver  for  Street  Railway 1187 

800.  Order  Appointing  Receiver  of  Indian  Oil  Lands,  Defining  His 

Powers  and  Duties,  and  for  Other  Purposes 1188 

801.  Order  Amending  Order  Appointing  Receiver,  Continuing  Him, 

Prescribing  Duties,  etc 1 193 

802.  Petition  of  Receiver  to  Bring  in  Parties,  etc 1 196 

803.  Order  Permitting  Receiver  to  Sue 1197 

804.  Petition  of  Receivers  for  Authority  to  Accept  Part  Payment  on 

Note  and  to  Extend  Payment  on  Balance,  and  Order  of 
Court  Thereon   1197 

805.  Petition   to   Discharge  Receivers  Appointed   by   Federal   Court 

and  for  Delivery  of  all  Property  in  Their  Hands  as  such 
Receivers  to  the  Receivers  Appointed  by  the  State  Court     1201 

806.  Petition  of  Receivers  of  Gas  Company  for  Authority  to  Execute 

Certain  Contracts,  and  Order  Thereon 1206 

807.  Petition  of  Receivers  for  Appointment  of  Attorney  and  Counsel, 

and  Order  Appointing   John  J.  Jones 1210 

808.  Petition  of  Receivers  for  Order  Directing  Them  to   Advertise 

for  Bonds  Sufficient  to  Meet   Sinking  Fund  Payments, 

and  Order  of  Court  Thereon 121 1 

809.  Order   Directing  Receivers  as  to  Building  and  Construction  of 

Betterments  under  Way,  etc 1214 

810.  Order  Extending  Receivership  in  One  Case  to  the  Property  In- 

volved in  Another  Case 1215 

811.  Order  (Jiving  Surviving  Receiver  Sole  Authority 1215 

812.  Order  Appointing  Ancillary  Receivers 1216 

813.  Order   Confirming  and   Continuing  Receivers,   and   Authorizing 

Them   to  Accept   Possession  of  Property  from  a   State 
Court  1220 

814.  Oath  of  Receiver 1221 

815.  Bond  of  Receiver 1221 

816.  Order  Overruling  Petition  to  Rehear  Application  for  Appoint- 

ment of  a  Receiver 1222 


XXX  TABLE   OF    CONTENTS. 

Form  No.  Page 

817.  Order  that  Receivers  Give  Notice  to  Stockholders  by  Publica- 

tion     1223 

818.  Notice  of  Petition  by  Receivers 1223 

819.  Answer  to  Petition 1224 

820.  Petition  of  Defendant  for  an  Order  Autliorizing  Receivers  to 

Deliver   to   it   the    Possession   of   Railway   Property    in 
Their  Hands 1227 

821.  Petition  for  an  Order  upon  a  Defendant  to  Deliver  to  the  Re- 

ceivers the  Deed  Records,  Plats,  and  Other  Muniments 

of  Title 122S 

822.  Order  Requiring  Defendant  to  Turn  Over  to  Receivers  Books, 

Plats  and  Deeds 1230 

823.  Petition  by  Receiver  for  Authority  to  Settle  Traffic  Balance 12.30 

824.  Order  Authorizing  Receiver  to  Settle  Traffic  Balances 1232 

825.  Order  to  Pay  Rent 1233 

826.  Petition  of  Receiver  for  Permission  to  Defend  Suits  and  Com- 

promise   Claims    1233 

827.  Order  Appointing  Special  Master  to  Hear  and  Report  Claims..      1234 

828.  Order  Appointing  Master  to  Hear  and  Report  Claims  (Another 

Form)    1236 

829.  Oath  of  Special  Master 1237 

830.  Proof  of  Claim  before  Master  by  One  Receiver  against  Another.  1237 

831.  Order  to   Pay  Claims  Accruing  Prior   to   the  Appointment   of 

the  Receiver 1238 

832.  Petition  for  Order  Limiting  Time  to  Present  Claims,  etc 1239 

833.  Verification  of  Above  Petition 1241 

834.  Notice  to  Creditors  to  Prove  Claims  before  tiio  Master 1241 

835.  Receiver's  Petition  for  Authority  to  PurchasL'  Rails  and  Ties..  1242 

836.  Order  Authorizing  Receivers  to  Purchase  Material,  etc 1245 

837      Order  Authorizing  Receiver  to  Pay  Master's  Fees 1245 

838.  Petition  of  S.  M.,  Receiver,  for  Authority  to  Borrow  .fl.lO.OOO 

on  Receiver's  Certificates 1246 

839.  Order  Authorizing  Receiver  to  Issue  Receiver's  Certificates  to 

the  for  $150,000 1248 

840.  A  Receiver's  Certificate 1249 

841.  Order  Allowing  Receiver  to  Renew  Notes. 1251 

842.  Petition  by  a  Receiver  of  a  Lessee  Railroad  Company  to  Replace 

Bridges  under  Terms  of  Lease 1252 

843.  Petition  of  Receiver  to  Pay  for  Electric  Block  System 1254 

844.  Order  Directing   Filing   of   Receiver's   Petition   and   Service   of 

Copy  of  this  Order  on  E.  A.  Ferguson,  President  Board 

of  Trustees  Cincinnati  Southern  Railway 1255 

845.  Order  Directing  Replacements  of  Bridges  to  be  Made  and  Re- 

serving Questions  as  to  Party  to  be  Charged  Therewith. .      1257 

846.  Entry  Granting  Motion  to  Vacate  Order  of  March  11,  18i)6,  and 

to  Discharge  Rule  Issued  in  Pursuance  Thereof 1257 

847.  Petition  for  Direction  to  Receivers 1258 


TABLE   OF    CONTENTS.  XXXI 

Form  No.  Page 

848.  Order  in  re  Petition  for  Direction  to  Receivers 12G3 

849.  Petition  of  Receiver  for  Protection 1264 

850.  Order  Directing  Marshal  to  Appoint  Deputies  to  Protect  Prop- 

erty in  llie  Hands  of  Receiver 1266 

851.  Intervenin};  I'etition  to  Recover  a  Judgment  of  a  State  Court. .  1267 

852.  Certified  Proceedings  befora  Magistrate — "Exhibit  A" 1269 

853.  Motion  to  Refer  Intervention  to  a  Special  Master 1270 

854.  Petition  to  Intervene  to  Foreclose  a  Mortgage 1271 

855.  Order  Ci  ran  ting  Leave  to  Intervene  to  Foreclose  a  Mortgage. . . .  1276 

856.  Petition  for  Leave  to  Intervene  to  Replevy  Goods  Furnished  a 

Manufacturing  Company  1277 

857.  Motion  to   Restrain  Receivers  in  Accordance  with  the  above 

Petition 1278 

858.  Petition  for  Permission  to  Make  Receiver  Party  to  a  Suit  in 

a  State  Court 1278 

859.  Order  Granting  Leave  to  Make  the  Receiver  Party  to  Suit  in 

State  Court 1280 

8G0.     Petition  for  Leave  to  Garnishee  Receiver 1281 

801.  Order  on  Foregoing  Petition t 1282 

802.  Intervening  Petition  for  Materials  Furnished  Railway  Company 

Claiming  Preference 1282 

803.  Intervening  Petition  for  Materials  Furnished  R.  R.,  Claiming 

Preference  over  Mortgagee 1285 

864.  Master's  Report  on  Intervention 1291 

865.  Decree  Confirming  Master  Commissioner's  Report  on  Interven- 

tion     1293 

866.  Quarterly  Statement  of  Receiver 1294 

867.  Certificate  of  Special  Master  to  Statement  of  Receiver 1295 

868.  Petition  of  S.  M.  for  Discliarge  as  Receiver 1295 

869.  Order  Accepting  Resignation  of  S.  M.,  Receiver,  and  Appointing 

J.  R.  Receiver   1296 

870.  Order  Discliarging  Receiver   1297 

871.  Order  Discliarging  Receiver  (Another  Form) 1298 

872.  Allowing  Account  and  Discharging  Receiver 1299 

873.  Order  Discharging  Railway  Receivers  and  Restoring  Property.  .  1.300 

874.  Assignment  by  Railway  Receivers  of  Choses  in  Action,  etc.,  on 

the  Surrender  of  the  Property 1307 

875.  Acknowledgment  to  Assignment  by  Receiver 1308 

876.  Deed  of  Receivers  of  a  Railroad  Company,  Trustee  and  the  Pur- 

chasers to  the  Railroad  Property 1309 

ANCILLARY   PROCEEDINGS 

877.  Ancillary  Bill.    In  re  Receivers  for  a  Manufacturing  Company 

where  Receivers  were  Appointed  by  a  State  Court  before 

a  Federal  Court  took  .Jurisdiction 1321 

878      Ancillary  Bill  for  Foreclosure  of  Railway 1328 


XXXU  TABLE    OF    CONTENTS, 

Form  No.  Page 

870.     Supplemental  Ancillary  Bill  for  Foreclosure  of  Railway 1329 

880.  Decree  Taking  Ancillary  Jurisdiction 1331 

881.  Order  Appointing  Ancillary  Receivers  for  a  Railroad  Property. .  1334 

882.  Stipulation  as  to  Answers  to  Ancillary  Bill 1.334 

883.  Appearance  of  Defendant  to  Ancillary  Bill 1335 

884.  Answer  of  Defendant  to  Ancillary  Bill  of  Foreclosure 1335 

885.  Order  Appointing  Special  Master  in  Ancillary  Suit 1.338 

886.  Order  to  Print  the  Records  in  Ancillary  Suit 1339 

887.  Petition  of  Defendant  for  an  Order  Authorizing,  Receivers  to 

Deliver   to   it   the   Possession   of   Railway   Property   in 

Their  Hands  1340 

888.  Ancillary  Decree 1342 

889.  Ancillary  Order,  Confirming  and  Directing  Sale  to  a  Recognized 

Manufacturing  Company   1342 

890.  Order  for  Sale 1345 

891.  Marshal's  Appraisement  of  Real  Estate 1345 

892.  Marshal's  Report  of  Sale  of  Real  Fstate 1347 

893.  Appointment  of  Special  Masters  to  Sell  Property 1348 

894.  Advertisement  of  Railway  Foreclosure  Sale 1.349 

895.  Advertisement  of  Sale  by  Special  Master 13.52 

896.  Report  of  Special  Master  of  No  Sale  for  Want  of  Bid<lers 1352 

897.  Supplemental   Report  of   Special  Master  to  Make   Sale,  Post- 

poning Sale 1354 

898.  Report  of  Special  Commissioner  to  Make  Sale  of  Postponement  1355 

899.  Report  of  Sale  by  Special  Master 1357 

900.  Order  Nisi  Confirming  Sale 1359 

901.  Decree  Denying  Motion  to  Set  Aside  Sale  and  Order  Absolute 

Confirming  Sale 13.59 

902.  Petition  to  Open  Sale  before  Confirmation 1361 

903.  Petition  to  Join  in  Foregoing  Petition  to  Set  Aside  a  Sale 1366 

904.  Petitions  Consenting  to  Set  Aside  a  Sale 1366 

905.  Order  Setting  Aside  Sale 1367 

906.  Decree  Confirming  Sale  of  R.  R.  Property 1369 

907.  Special  Master's  Deed 1374 

NE   EXEAT 

908.  Motion  for  Writ  of  Ne  Exeat 1390 

909.  Affidavit  to  Obtain  a  Ne  Exeat 1390 

910.  Order  for  Writ  of  Ne  Exeat  to  Issue 1391 

911.  Writ  of  Ne  Exeat  Republica 1392 

912.  Bond  to  Marshal  upon  a  Ne  Exeat 1393 

913.  Notice  of  Motion  for  the  Discharge  of  Ne  Exeat 1393 

«i4.    Motion  to  Discharge  Writ  of  Ne  Exeat 1394 

915.  Order  that  Writ  of  Ne  Exeat  be  Discharged  on  Defendant  Giv- 

ing Security  1395 

916.  Order  that  Writ  of  Ne  Exeat  be  Discharged  with  Inquiry  as  to 

Defendant's  Damages   1395 


TABLE   OF    CONTENTS.  XXXlll 

INJUNCTIONS 

Form  No.  Page 

917.  Notice  of  Motion  for  Preliminary  Injunction 1396 

918.  Affidavit  of  Service 1396 

919.  Motion  for  a  l^reliminary  Injunction 1.397 

920.  Order  Overruling  Motion  1397 

921.  Motion  for  Temporary  Injunction   and  for  Restraining  Order 

without  Notice    1398 

922.  Restraining  Order  Granted  Prior  to  Application  for  Injunction. .      1399 

923.  Order  Denying  Restraining  Order  and  Setting  Down  for  Hear- 

ing on  Motion  for  Preliminary  Injunction 1400 

924.  Order  Restraining  Certification   of   Values   to  Comptroller  for 

Taxation    1401 

92.'5.     Order  Restraining  tlie  Construction  of  a  Telephone  Line  in  a 

Municipality    1402 

926.  Restraining  Order  against  Municipality  from  Interfering  with 

Construction  of  Telephone  Lines 1402 

927.  Restraining  Order  against  a  Strike  Leader 1403 

928.  Order  Modifying  Restraining  Order 1404 

929.  Order  of  Reference  to  Master  of  Motion  for  Injunction  to  Re- 

port Facts 1405 

030.  Report  of  Special  Master  on  Motion  for  Injunction  being  Re- 

ferred         1406 

031.  Order  Refusing  Injunction  and  Vacating  Preliminary  Restrain- 

ing Order 1 407 

932.     Order  Granting  Temporary  Injunction  against  Postmaster,  Re- 
quiring Him  to  Transmit  Matter  Tlirough  the  Mails 140S 

9.33.     Order  to  Show  Cause  Why  Temporary  Injunction  Should  Not 

be  Issued  against  the  Receiver  of  a  Railroad 1409 

934.  Order  Granting  Temporary  Injunction  against  Receivers  of  a 

Railroad    1410 

935.  Decree  Granting  Preliminary  Injunction  in  Case  of  Trade-mark, 

Label,  etc 1411 

9.35a.  Preliminary  Injunction    1412 

936.  Decree  Denying  Injunction  under  Sherman  Anti-trust  Act 1414 

9.37.     Order  to  Show  Cause  Why  Injunction  Should  not  Issue,  etc 1414 

938.  Order  Allowing  Injunction  to  Restrain  Collection  of  Taxes 1415 

939.  Order  Granting  an  Injunction  against  Municipality  Interfering 

with  Telegraph  Poles,  etc 1415 

940.  Order  Granting  Injunction  against  Telephone  Company 1417 

941.  Order   (Granting    an    Injunction   against    Chief   Executive   of  a 

Labor  Union  141 S 

942.  Order    Enjoining    Striking    Workmen    from    Interfering    with 

Business 1419 

943.  Order  of  Injunction  Extended 1422 

944.  Decree  Denying  Motion  to  Vacate  Preliminary  Injunction 1423 

945.  Decree   Enjoining  the  Carrying  on  of  a  Business  in  Violation 

of  a  Contract 1423 


XXXIV  TABLE    OF    CONTENTS. 

Form  No.  Page 

946.  Order  Allowing  Injunction  against  Use  of  Copyriglited  Forms 

in  Business   1426 

947.  Decree  luijoining  Disclosures  of  Secret  Processes  in  Issue,  Even 

to   Experts    1428 

948.  Application  for  Injunction  against  Enforcing  a  Judgment  of  a 

State  Court    142!) 

949.  Decree  Enjoining  State  Court  Judgment 14.34 

950.  Order  Enjoining  Prosecution  of  a   Pending  Suit  at  Law  in  the 

Same    Federal   Court   and    Forbidding    the    Bringing    of 

Suits  in  a  State  Court,  and  to  Strike  Out 14.36 

.'»51.     Order  for  Preliminary  Injunction  in  a  Patent  Suit 1437 

0.'i2.     Preliminary    Injunction    to    Restrain    the    Infringement    of    a 

Patent    1438 

953.  Order   Refusing   Injunction    in   a    Patent   Suit   upon    Defciuhint 

Giving  Bond   14.3!) 

954.  Bond  in  Lieu  of  Preliminary  Injunction  in  a  Patent  Suit 143J) 

955.  Writ  of  Injunction   (General  Form) 1440 

956.  MarsliaPs  Return  of  Writ  of  Injunction ; 1441 

"957.     Injunction   to  Restrain  Certification  of   V^alues  to  Comptroller 

for  Ta.xation 1442 

958.  Injimction  Restraining  a  Telephone  Company  Connecting  its  In- 

struments with  Those  of  a  Rival  Company 144.3 

959.  Writ  of  Injunction  against  Chief  VZxecutive  of  Labor  Union. . . .  1444 

960.  Injunction  Bond 1446 

961.  Motion   to  Modify  Injunction. 1446 

962.  Motion  to  Dissolve  Injunction 1447 

963.  Motion  to  Dissolve  Preliminary  Injunction 1447 

!'64.     Order  Overruling  Motion  to  Dissolve 1448 

965.  An  Order  Granting  Motion  to  Dissolve  Injunction  and  Substi- 

tuting Bond  for  Injunction 1448 

966.  Order  Dissolving  Injunction 144S 

967.  Final  Decree  Making  a  Temporary  or   Preliminary  Injunction 

Perpetual   1449 

968.  Motion  for  Restraining  Order  and  .Application  for  Hearing  on 

Injunction  under  Judicial  Code,  Section  266 1450 

969.  Restraining   Order  and   Order   to    Appear   for   Hearing    before 

Three  Judges  for  Preliminary  Injunction  under  Judicial 
Code.  Section  266   1450 

970.  Marshal's   Return   on    Restraining  Order   under   Judicial   Code, 

Section  266  1452 

971.  Order   by   Circuit   Judge   where   District  Judge   not   Available. 

Setting  Down  Application  for  Hearing  on  Temporary 
Injunction,  Calling  Two  Judges  to  Aid,  Naming  a  Place 
for  the  Hearing  before  the  Three  Judges,  and  Granting 
Temporary  Restraining  Order 1452 


TABLE    OF    CONTENTS.  XXXV 

Form  No.  Page 
li72.     Motion  to  Show  Cause  Why  Temporary  Injunction  Should  not 
Issue  under  Judicial  Code,  Section  266,  and  for  Restrain- 
ing Order 1454 

073.     Kotice  of  Hearing  on  Motion  for  Temporary  Injunction  under 

Judicial   Code,   Section   266 1456 

974.  Order  to  Show  Cause  Why  a  Temporary  Injimction  Should  not 

Issue 1457 

975.  Order  Allowing  Temporjirv  Fnjuiution  witli  Exceptions  Thereto, 

under  Judicial  Code,  Section  260 1458 

976.  Order  by  Three  Judges  Enjoining  State  Officials  under  Judicial 

Code,  Section  266 1460 

977.  Order   Denying   Temporary   Injunction   Prayed  under  Judicial 

Code,  Section  266 1463 

978.  Order  Denying  Application  for  Injunction  under  Judicial  Code, 

Section  266,  and  Instructing  to  Proceed  in  Equity  as 
Usual  (Another  Form)   1464 

979.  Order  Denying  Injunction  Pendente  Lite  and  Granting  Motion 

to  Dismiss  Bill  of  Complaint,  under  Judicial  Code,  Sec- 
tion 266   1464 

980.  Preliminary  Injunction  Suspending  Enforcement  of  an  Order  of 

the  Interstate  Commerce  Commission  Prescribing  a  Bill 

of  Lading    1465 

981.  Bill  Requesting  Injunction   against   United   Mine   Workers   of 

America  to  Prevent  a  Strike 1468 

982.  Temporary  Restraining  Order  1483 


Forms  of  Federal  Practice 


JURISDICTION 
ALLEGATIONS  OF  CITIZENSHIP 


No.  1. 

Caption. 

The  District  Court  of  the  United  States  for  the Division 

of  the District  of  . 

A.  B.,  Plaintiff,         \  At  Law  [or  In  Equity,  Admiralty, 

vs.                     >                  Bankruptcy,  or  as  may  be]. 
C.  D.,  Defendant.      )  No.  . 

[Name  of  Pleading.] 

A  caption  may  be  used  to  help  out  a  defective  allegation  of 
citizenship.    Jones  v.  Andrews,  1  Wail.  327,  19  L.  Ed.  935. 

Jurisdiction  generally.  Section  24  of  the  Judicial  Code  invests  the 
district  courts  w^ith  original  jurisdiction  in  certain  respects,  which 
may  be  divided  into  two  classes: 

First.  In  one  class  the  jurisdiction  depends  entirely  on  the 
character  of  the  parties,  as  (a)  a  controversy  between  citizens  of 
different  States,  (b)  a  controversy  between  citizens  of  a  State  and 
ioreign  States,  subjects  and  citizens,  or  (c)  suits  brought  by  the 
United  States.  If  these  be  the  parties,  it  is  entirely  unimportant 
what  may  be  the  subject  of  the  controversy.  In  (a)  and  (b)  juris- 
diction is  usually  said  to  depend  upon  "diversity  of  citizenship." 
Cohen  v.  Virginia,  6  Wheat.  264,  378,  5  L.  Ed.  257;  Gaines  v.  Fuentes, 
92  U.  S.  10,  23  L.  Ed.  524;  Reagan  v.  Farmers  Loan  &  T.  Co.,  154 
U.  S.  362,  420,  38  L.  Ed.  1014;  Dodge  v.  Woolsey,  18  How.  331,  IS  L. 
Ed.  401;  Blair  v.  Chicago,  201  U.  S.  400,  50  L.  Ed.  801;  Traction  Co. 
v.  Mining  Co.,  196  U.  S.  239,  49  L.  Ed.  466. 

Second.  In  the  other  class,  the  jurisdiction  depends  entirely  upon 
the  character  of  the  cause,  whoever  may  be  the  parties.  This  class 
includes  cases  arising  under  the  Constitution,  laws  and  treaties  of 
the   United   States.      In    this   class    the   citizenship    of    the    parties    is 


I  JURISDICTION. 

immaterial,  and  the  jurisdiction  is  usually  said  to  depend  upon  a 
"federal  question."  Jetton  v.  University  of  the  South,  208  U.  S.  489, 
52  L.  Ed.  584;  Cohen  v.  Virginia,  6  Wheat.  264,  378,  5  L.  Ed.  257; 
Ames  V.  Kansas,  111  U.  S.  449,  28  L.  Ed.  482;  Ableman  v.  Booth,  21 
How.  506,  16  L.  Ed.  169;  Atchison,  etc.,  R.  Co.  v.  Kindare,  203  Fed. 
Rep.  165. 

The  courts  can  not,  as  a  source  of  jurisdiction,  resort,  in  criminal 
or  civil  cases,  to  the  common  law.  U.  S.  v.  Hudson,  7  Cranch.  32,  3 
L.  Ed.  259;  In  re  Barry,  42  Fed.  113,  120  and  cases  there  cited;  U.  S- 
V.  Eaton,  144  U.  S  677,  687,  36  L.  Ed.  591;  U.  S.  v.  Lewis,  36  Fed.  449; 
or  to  the  statutes  of  a  state.  The  New  Orleans  v.  Phoebus,  11  Pet. 
175,  9  L.  Ed.  677;  Roach  v.  Chapman,  22  How.  129,  16  L.  Ed.  294; 
Toland  v.  Sprague,  12  Pet.  300,  328,  9  L.  Ed.  1093. 

Jurisdiction  can  be  neither  restricted  nor  enlarged  by  the  statutes 
of  a  State  in  respect  to  suits  at  law  or  in  equity.  Cowles  v.  Mercer 
County,  7  Wall.  118,  19  L.  Ed.  86;  Hyde  v.  Stone,  20  How.  170,  15  L. 
Ed.  874;  Chicago  &  N.  W.  R.  Co.  v.  Whitton.  13  Wall.  270,  20  L.  Ed. 
571;  Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  100,  42  L.  Ed.  964; 
David  Lupton's  Sons  v.  Automobile  Club,  225  U.  S.  489,  56  L.  Ed. 
1177;  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  209,  36  L.  Ed.  942; 
or  in  admiralty,  Workman  v.  New  York,  179  U.  S.  552,  45  L.  Ed. 
663;  The  J.  E.  Randall,  148  U.  S.  1,  19,  Zl  L.  Ed.  345;  Butler  v.  Boston 
Steamship  Co.,  130  U.  S.  527,  Zl  L.  Ed.  1017;  Maryland  v.  Miller,  180 
Fed.  796;  Aurora  Shipping  Co.  v.  Boyce  (9  Cir.),  191  Fed.  860,  112 
C.  C.  A.  372. 

Jurisdiction  of  the  federal  courts  can  not  be  defeated  or  impaired 
by  the  laws  of  a  State  undertaking  to  give  exclusive  jurisdiction  to 
its  own  courts.  Lawrence  v.  Nelson,  143  U.  S.  215,  36  L.  Ed.  130; 
Hayes  v.  Pratt,  147  U.  S.  557,  570,  37  L.  Ed.  279;  Chicago  &  N.  W. 
R.  Co.  V.  Whitton,  13  Wall.  270,  20  L.  Ed.  571;  Cowles  v.  Mercer 
County,  7  Wall.  118,  9  L.  Ed.  86;  Barber  Asphalt  Paving  Co.  v. 
Morris  (8  Cir.),  132  Fed.  945,  949,  66  C.  C.  A.  55  and  cases  collated 
in  the  opinion. 

Jurisdiction  in  each  case  is  determined  as  of  the  time  of  the  com- 
mencement of  the  suit.  Emsheimer  v.  New  Orleans,  186  U.  S-  33, 
46  L.  Ed.  1042;  Fraenkl  v.  Cerecado,  216  U.  S.  295,  54  L.  Ed.  486; 
Connolly  v.  Taylor,  2  Pet.  556,  563,  7  L.  Ed.  518;  Crehore  v.  Railway 
Co.,  131  U.  S.  240,  243,  33  L.  Ed.  144;  Jackson  v.  Allen,  132  U.  S.  21, 
33  L.  Ed.  249;  Anderson  v.  Watt,  138  U.  S.  694,  34  L.  Ed.  1078;  Ex 
parte  Wisner,  203  U.  S.  449,  51  L.  Ed.  264;  Dunn  v.  Clarke,  8  Pet.  1,  8 
L.  Ed.  845;  Tug  River  Coal  &  Salt  Co.  v.  Brigel  (6  Cir.),  86  Fed. 
818,  30  C.  C.  A.  415;  Baker  v.  Eastman  (1  Cir.),  206  Fed.  865,  124 
C.  C.  A.  525. 

The  presumption  is  that  a  case  is  without  its  jurisdiction,  unless 
the  contrary  affirmatively  appears  of  record.  Grace  v.  American 
Central  Ins.  Co.,  109  U.  S.  278,  283,  27  L.  Ed.  932;  Chicago,  B.  &  Q. 
Ry.  Co.  v.  Willard,  220  U.  S.  413,  419,  55  L.  Ed.  521;  Thomas  v.  Board 


ALLEGATIONS  OF   CITIZENSHIP.  3 

of  Trustees,  195  U-  S.  207,  211,  49  L.  Ed.  160;  Bors  v.  Preston,  111  U. 
§.  252,  28  L.  Ed.  419;  Robertson  v.  Cease,  97  U.  S.  646,  24  L.  Ed.  1057. 


No.  2. 

A  Citizen  against  a  Citizen. 

[Caption.] 

A.  B,,  who  is  a  citizen  (1)  of  the  state  of ,  residing  at 

in  the  state  of ,  plaintiff  in  this  suit,  complains  of  the  defend- 
ant, C.  D.,  who  is  a  citizen  of  the  state  of ,  residing  at 

in  the  state  of  ,  and  an  inhabitant  of  the  division  of 

the district  of (2)  aforesaid,  and  says: 

(1)  It  is  the  citizenship,  and  not  the  residence,  of  the  parties  that 
confers  jurisdiction.  Wolfe  v.  Hartford  Life  Ins.  Co.,  148  U.  S. 
389,  27  L.  Ed.  493;  Steigleder  v.  McQuesten,  198  U.  S.  141,  49  L.  Ed. 
986;  Morris  v.  Gilmer,  129  U.  S.  315,  32  L.  Ed.  690;  Marks  v.  Marks, 
75  Fed.  321;  Harton  v.  Howley,  155  Fed.  491;  Newcomb  v.  Burbank 
(2d  Cir.).  181  Fed.  334,  104  C.  C.  A.  164. 

Citizenship  of  women.  The  citizenship  of  a  married  woman  is 
the  same  as  that  of  her  husband.  Anderson  v.  Watt,  138  U.  S.  694, 
34  L.  Ed.  1078;  Cheely  v.  Clayton,  110  U.  S.  701,  709,  28  L.  Ed.  298; 
Pequignot  v.  Detroit,  16  Fed.  211;  Broadis  v.  Broadis,  86  Fed.  951; 
Hatch  V.  Ferguson,  57  Fed.  959. 

A  widow  or  a  divorced  woman  may  acquire  a  separate  domicile 
and  change  her  citizenship  at  will.  Williamson  v.  Osenton,  232  U. 
S.  619;  Cheely  v.  Clayton,  110  U.  S.  701,  28  L.  Ed.  298;  Barber  v. 
Barber,  21  How.  582,  16  L.  Ed.  226;  Toledo  Traction  Co.  v.  Cameron 
(6th  Cir.),  137  Fed.  48,  69  C.  C.  A.  28;  Marks  v.  Marks,  75  Fed. 
321.  Also  a  wife  who  has  justifiably  left  her  husband  may  acquire  a 
different  domicile  from  his  for  the  purpose  of  bringing  an  action 
for  damages  against  persons  other  than  her  husband.  Williamson  v- 
Osenton,  supra.  If  she  marries  again  she  acquires  the  citizenship 
of  her  second  husband.  Pequignot  v.  Detroit,  16  Fed.  211;  Marks  v. 
Marks,  75  Fed.  321. 

If  an  alien  woman  marries  a  citizen,  she  thereby  acquires  the 
citizenship  of  her  husband.  R.  S-  Sec.  1994;  Kelly  v.  Owen,  7  Wall. 
496,  19  L.  Ed.  283;  Hatch  v.  Ferguson.  57  Fed.  959;  Leonard  v.  Grant, 
5  Fed.  11;  Broadis  v.  Broadis,  86  Fed.  95. 

Forms  of  averment.  It  has  been  held  a  sufficient  allegation  of 
citizenship  to  aver  that  a  party  is  a  "citizen  of  the  United  States  and 
a  resident"  of  a  particular  state.  Gassies  v.  Ballon,  6  Pet.  761,  8  L. 
Ed.  593;  Clausen  v.  American  Ice  Co..  144  Fed.  723;  Margarete  Steiff 
V.    Bing,   206   Fed.   900;    or   that   he  is   a   "citizen    of   said   county   of 


4  JURISDICTION. 

Monroe  in  the  state  of  Michigan."     Toledo  Traction  Co.  v.  Cameron 
(6th  Cir.),  137  Fed.  48,  69  C.  C.  A.  28. 

It  is  not  a  sufficient  allegation  of  citizenship  to  aver  that  a  party 
is  "of"  or  a  "resident"  of  a  particular  state.  Wolfe  v.  Hartford  Life 
Ins.  Co.,  148  U.  S.  389,  11  L.  Ed.  493;  Everhart  v.  Huntsville  Female 
College,  120  U.  S.  223,  30  L.  Ed.  623;  Denny  v.  Pironi,  141  U.  S.  121, 
35  L.  Ed.  657;  Home  v.  Hammond  Co.,  155  U.  S.  393,  39  L.  Ed.  197; 
Mayer  v.  Cohrs,  188  Fed.  443;  or  "a  bona  fide  resident"  of  a  state. 
Koike  V.  Atchison,  etc.,  Ry.  Co.,  157  Fed.  623;  or  that  the  plaintiff 
is  a  citizen  of  a  different  state  from  that  of  the  defendant.  Cameron 
V.  Hodges,  127  U.  S.  322,  324,  32  L.  Ed.  132;  Laskey  v.  Newtown 
Min.  Co.,  56  Fed.  628;  or  that  the  defendant  is  a  citizen  of  a  state  or 
country  unknown,  but  other  than  the  state  of  the  plaintiff.  Grace  v. 
American  Cent.  Ins.  Co.,  109  U.  S.  278,  27  L.  Ed.  932;  Tug  River,  etc. 
Co.  V.  Brigel  (6th  Cir.),  67  Fed.  625,  14  C  C.  A.  577;  or  that  a  party 
is  a  "citizen  or  resident"  of  a  state.  Brown  v.  Keene,  8  Pet.  112,  8 
L.  Ed.  885;  or  that  the  defendant  is  "the  Tax  Assessor  for  the  Parish 
of  Vernon,  Louisiana"  without  stating  of  what  state  he  is  a  citizen. 
Assessor,  etc  v.  Gould  (S-th  Cir.).  210  Fed.  894,  127  C.  C.  A.  553. 

A  defective  averment  of  citizenship  may  be  cured  by  amendment 
at  any  time,  even  after  verdict.  Mexican  Cent.  Ry.  Co.  v.  Duthie,  189 
U.  S.  1(i,  47  L.  Ed.  715;  McEldowney  v.  Card,  193  Fed.  475,  483; 
Crosby  v.  Cuba  R.  Co.,  158  Fed.  144;  Kennedy  v.  Bank  of  Ga.,  8  How- 
586,  12  L.  Ed.  1209;  and  now  even  in  the  Appellate  Court,  by  Section 
274c  of  the  Judicial  Code,  38  Stat.  L.  956  (March  3,  1915);  Swayne  v. 
Barsch,  226  Fed.  581,  141  C  C.  A.  337. 

As  to  the  meaning  of  "inhabitant,"  see  Shaw  v.  Quincy  Mining 
Co.,  145  U.  S.  444,  36  L.  Ed.  768;  Bicycle  Stepladder  Co.  v.  Gordon,  57 
Fed.  529. 

In  suits  under  the  Tucker  Act,  24  Stat.  L.  506,  Judicial  Code, 
Section  24,  paragraph  20,  citizenship  need  not  be  averred,  and  the 
rule  as  to  venue  in  the  district  where  the  plaintiff  resides  may  be 
waived,  in  accordance  with  the  general  rule  re  venue  in  federal  courts; 
hence  even  an  alien  may  sue  under  said  act.  U.  S.  v.  Hvoslef,  237 
U.  S.  1,  59  L.  Ed.  81i3;  Thames  and  Mersey  Ins.  Co.  v.  U.  S.,  Ill 
U.  S.  19,  59  L.  Ed.  821. 

(2)  Venue.  Where  jurisdiction  depends  on  diversity  of  citizen- 
ship, the  suit  may  be  brought  only  in  the  district  of  the  residence  of 
the  plaintiff  or  defendant.  Sections  51,  52  and  53  of  the  Judicial  Code; 
Smith  V.  Lyon,  133  U-  S.  315,  317,  33  L.  Ed.  635;  Greeley  v.  Lowe. 
155  U.  S.  58.  68,  39  L.  Ed.  69;  Doscher  v.  U.  S.  Pipe  Line  Co.,  185 
Fed.  959;  Reich  v.  Tennessee  Copper  Co.,  209  Fed.  880;  Revett  v. 
Clise,  207  Fed.  673. 

The  plaintiff  may  bring  the  suit  in  any  division  of  the  district 
in  which  he  resides.  Reich  v.  Tennessee  Copper  Co.,  209  Fed.  880. 
If  the  suit  is  brought  in  the  district  of  the  residence  of  the  defendant. 
it  must  be  in  the  division  in  which  the  defendant  resides.  Sections 
52  and  53  of  the  Judicial  Code. 


ALLEGATIONS  OF   CITIZENSHIP.  D 

Where  jurisdiction  depends  on  the  presence  of  a  federal  question, 
the  suit  must  be  brought  in  the  district  and  division  in  which  the 
defendant  resides.  Sections  51,  52  and  53  of  the  Judicial  Code;  Macon 
Grocery  Co.  v.  Atlantic  Coast  Line,  215  U.  S.  501,  54  L.  Ed.  300; 
In  re  Keasbey  &  Mattison  Co.,  160  U.  S.  221,  40  L.  Ed.  402.  For  an 
exception  to  this  rule  in  patent  cases  see  Section  48  of  the  Judicial 
Code. 

Where  the  objection  is  seasonably  made  that  the  suit  is  brought 
in  the  wrong  district  or  division,  it  will  be  dismissed.  Revett  v. 
Clise,  207  Fed.  673,  676,  and  cases  there  cited. 

The  objection  that  there  is  not  jurisdiction  in  a  particular  district 
may  be  waived  by  appearing  and  pleading  to  the  merits.  In  re  Moore, 
209  U.  S.  490,  52  L.  Ed.  904;  Western  Loan  Co.  v.  Butte  &  Boston 
Mining  Co.,  210  U.  S.  368,  52  L.  Ed.  1101;  Baltimore  &  Ohio  R.  Co.  v. 
Doty  (6th  Cir.),  133  Fed.  866,  67  C  C.  A.  38;  Campbell  v.  Johnson 
(9th  Cir.),  167  Fed.  102,  92  C.  C.  A.  554,  and  see  Lehigh  Valley  Coal 
Co.  V.  Yensavage,  218  Fed.  547,  134  C  C.  A.  275. 


No.  3. 

Co-plaintifFs  against  Co-defendants. 

[Caption.] 

A.  B.,  who  is  a  citizen  (1)  of  the  state  of ,  residing  at 

in  the  state  of ,  and  S.  H.,  who  is  a  citizen  of  the  state  of 

,  residing  at in  the  state  of ,  plaintiffs  in  this  suit, 

complain  of  the  defendants,  The  C.  D.  Company,  a  corporation 

duly  organized  under  the  laws  of  the  state  of  and  having 

its  principal  place  of  business  at in  said  state,  and  C.  D., 

who  is  a  citizen  of  the  state  of ,  residing  at  in  the 

state  of  ,  and  each  defendant  is  an  inhabitant  of  the  said 

division  of  the district  of  (2)  aforesaid,  and  say: 

(1)  The  plaintiff  should  aver  positively  the  citizenship  of  each' 
party,  plaintiff  and  defendant.  Muller  v.  Dows,  94  U.  S.  444,  24 
L.  Ed.  207. 

Diversity  requisite  to  jurisdiction.  Tf  there  are  several  plaintiffs, 
each  plaintiff  must  be  competent  to  sue,  and  if  there  are  several 
defendants,  each  defendant  must  be  liable  to  be  sued,  in  order  to 
sustain  the  jurisdiction  on  the  ground  of  diversity  of  citizenship. 
Susquehanna,  etc..  Coal  Co.  v.  Blatchford,  11  Wall.  172,  20  L.  Ed.  179; 
Strawbridge  v.  Curtis,  3  Cranch,  267,  2  L.  Ed.  435 ;  Anderson  v.  Watt, 
138  U.  S.  694,  34  L.  Ed.  1078;  Florida  C.  &  P.  R.  Co.  v.  Bell,  176  U.  S. 
321,  44  L.  Ed.  486';  Cuebas  v.  Cuebas,  223  U-  S.  376,  388,  56  L.  Ed.  476. 

Aligrnment  of  parties.  Prior  to  the  Judiciary  Act  of  March  3, 
1875  (18  Stat.  L    470)   the  diversity  of  citizenship  of  parties  was  de- 


6  JURISDICTION. 

termined  solely  according  to  the  position  they  occupied  as  plaintiff 
and  defendant  in  the  suit.  Removal  cases,  100  U.  S.  457,  469,  25  L. 
Ed.  573. 

The  court  will  now  ascertain  the  real  controversy  and  arrange 
the  parties  on  opposite  sides  of  it  according  to  their  interests,  with- 
out regard  to  the  position  they  occupy  in  the  pleadings.  Pacific  R. 
Co.  V.  Ketchum,  101  U.  S.  289,  25  L.  Ed.  932;  Doctor  v.  Harrington, 
196  U.  S.  579,  49  L.  Ed.  606;  Quincy  v.  Steel,  120  U.  S.  241,  30  L.  Ed. 
624;  Shipp  v.  Williams  (6th  Cir.).  62  Fed.  4,  10  C.  C.  A.  247  and  249; 
Mason  v.  Dullagham,  82  Fed.  689,  27  C.   C.  A.  296,  298. 

(2)  See  note  (2)  to  No.  2. 

If  there  are  two  or  more  defendants  residing  in  different  districts 
of  the  state,  or  in  different  divisions  of  the  district,  which  fact  should 
be  made  to  appear  in  the  allegations,  the  plaintiff  may  sue  in  either 
division  or  district  where  any  defendant  resides  and  send  duplicate 
writs  for  the  other  defendant  or  defendants  to  the  other  division  or 
district  where  the  defendant  or  defendants  reside.  Sections  52  and 
53  of  the  Judicial  Code;  Petri  v.  Creelman  Lumber  Co.,  199  U.  S.  487, 
50  L.  Ed.  281;  Doscher  v.  U.  S.  Pipe  Line  Co.,  185  Fed.  959;  Reich  v. 
Tennessee  Copper  Co.,  209  Fed.  880. 


No.  4. 

A  Citizen  against  a  Firm. 

[Caption.] 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  residing  at  

in  the  state  of ,  plaintiff  in  this  suit,  complains  of  the  defend- 
ants, C.  D,,  B,  R.,  and  A.  S-,  co-partners  ( 1 )  doing  business  under 

the  firm  name  and  style  of  C.  D.  &  Company  at in  the  state 

of  ,  all  of  whom  are  citizens  of  the  said  state  of and 

inhabitants  of  the division  of  the district  of  (2) 

aforesaid,  and  says : 

(1)  The  citizenship  of  the  individual  members  of  a  co-partnership 
determines  the  jurisdiction  when  founded  upon  diverse  citizenship. 
Great  Southern  Fireproof  Hotel  Co.  v.  Jones,  177  U.  S.  449,  44  L.  Ed. 
842;  Raphael  v.  Trask,  194  U.  S.  272,  48  L.  Ed.  973;  Jewish  Coloniza- 
tion Association  v.  Solomon,  125  Fed.  994;  Andrews  &  Co.  v. 
Puncture  Proof  Footwear  Co.,  168  Fed.  762. 

For  purposes  of  federal  jurisdiction,  a  partnership  includes  not 
only  commercial  firms,  but  also  joint  stock  companies.  Chapman  v. 
Barney,  129  U.  S.  677,  32  L.  Ed.  800;  Great  Southern  Fireproof  Hotel 


ALLEGATIONS   OF    CITIZENSHIP.  7 

Co.  V.  Jones,  177  U.  S.  449,  44  L.  Ed.  842 ;  Boards  of  Trustees.  Thomas 
V.  Board  of  Trustees,  195  U.  S.  207,  49  L.  Ed.  160;  and  voluntary 
associations  or  unions.  Irving  v.  Joint  District  Council,  180  Fed. 
B96;  Osley  Stave  Co.  v.  Coopers'  Union,  12  Fed.  695,  affirmed  (8th 
Cir.)  83  Fed.  912,  28  C.  C.  A.  99;  Seattle  Brewing  Co.  v.  Hansen,  144 
Fed.  1011;  Barnes  &  Co.  v.  Berry,  156  Fed.  72;  United  States  v.  Coal 
Dealers'  Assn.,  85  Fed.  252:  Evenson  v.  Spaulding  (9th  Cir.),  150  Fed. 
517,  82  C.  C.  A.  263;  American  Steel  &  Wire  Co.  v.  Wire  Drawers' 
Union,  90  Fed.  598. 

A  partnership  can  not  be  sued  in  a  federal  court  in  the  firm 
name  without  averring  the  citizenship  of  its  members,  although  this 
may  be  done  in  the  state  courts  under  the  state  law.  Thomas  v. 
Board  of  Trustees,  195  U.  S.  207,  49  L.  Ed.  160;  Chapman  v.  Barney, 
129  U.  S.  677,  32  L.  Ed.  800;  Empire  Rice  Mill  Co.  v.  Neumond,  199 
Fed.  800;  Bruett  &  Co.  v.  Excavator  Co.,  174  Fed.  668;  Rayla  Market 
Co.  V.  Armour  &  Co.,  102  Fed.  530;  Adams  v.  May,  27  Fed.  907. 

Each  partner  who  is  a  party  to  the  suit  must  be  a  citizen  of  a 
different  state  from  each  adverse  party.  Empire  Rice  Mill  Co.  v. 
Neumond,  199  Fed.  800;  Bruett  &  Co.  v.  Excavator  Co.,  174  Fed.  668; 
Breedlove  v,  Nicolet,  7  Pet.  413,  8  L.  Ed.  731 ;  Irving  v.  Joint  District 
Council,  180  Fed.  896;  Jewish  Colonization  Assn.  v.  Solomon,  125 
Fed.  994. 

At  common  law  all  the  partners  were  required  to  be  joined  as 
defendants  in  a  suit  against  the  firm.  But  now  a  suit  to  enforce  a 
firm  obligation  may  be  maintained  against  the  firm  and  some  of 
the  partners  without  joining  others,  who  are  without  the  jurisdic- 
tion of  the  court.  Section  50,  Judicial  Code;  Breedlove  v.  Nicolet,  7 
Pet.  413,  8  L.  Ed.  731;  Clearwater  v.  Meredith,  21  How.  489,  16  L. 
Ed.  201;  Inbusch  v.  Farwell,  1  Black,  566,  571,  17  L.  Ed.  188;  Smith 
V.  Consumers'  Cotton  Oil  Co.  (5th  Cir.),  86  Fed.  359,  30  C.  C.  A-  103; 
Doremus  v.  Bennet,  No.  4001  Fed.  Cas.,  4  McLean,  224;  Martin  v. 
Meyer,  45  Fed.  435;  Empire  Rice  Mill  Co.  v.  Neumond,  199  Fed.  800. 

It  has  been  held  sufficient  to  aver,  in  respect  to  a  partnership 
association  of  Michigan,  that  "each  and  every  member  and  partner 
of  such  partnership  association  is  a  citizen  of  the  State  of  Michigan." 
Derk  P.  Yonkerman  Co.  v.  Fuller's  Agency,  135  Fed.  613;  or  that 
"the  plaintiflFs  were  a  firm  of  natural  persons,  associated  together  for 
the  purpose  of  carrying  on  the  banking  business  in  Omaha,  and  had 
been  for  a  period  of  eighteen  months  engaged  in  such  business  at 
said  place."  Express  Co.  v.  Kountze  Bros.,  8  Wall.  342,  351,  19  L. 
Ed.  457. 

(2)  See  notes  (2)  to  Nos.  2  and  3. 

If  the  defendant  partners  reside  in  different  divisions  and  districts 
of  the  state  in  which  the  suit  is  brought,  it  should  be  stated  in  which 
division  and  district  each  partner  resides.  Sections  52  and  53  Judicial 
Code.     For  form  of  allegation  see  No.  6,  post. 


JURISDICTION. 

No.  5. 

A  Firm  against  a  Citizen. 
[Caption.] 
A.  B.,  who  is  a  citizen  of  the  state  of  ,  residing  at 


in  the  state  of  ,  and  R.  S.,  who  is  a  citizen  of  the  state 

of ,  residing  at in  the  state  of ,  co-partners(l)  doing 

business  under  the  firm  name  and  style  of  A.  B.  &  Co.,  at , 

in  the  state  of ,  plaintiffs  in  this  suit,  complain  of  the  defend- 
ant, C  D.,  who  is  a  citizen  of  the  state  of ,  residing  at 

in  the  state  of  and  an  inhabitant  of  the  said  division 

of  the  district  of (2)  aforesaid,  and  say: 

(1)  See  note  (1)  to  No.  4. 

Where  the  firm  is  a  plaintiff,  all  the  partners  must  be  joined  as 
co-plaintiflfs  and  the  citizenship  of  each  individual  averred.  Andrews 
&  Co.  V.  Puncture  Proof  Footwear  Co.,  168  Fed.  762. 

(2)  See  note  (2)  to  No.  2. 


No.  6. 

A  Firm  against  a  Firm. 
[Caption.] 
A.  B.,  who  is  a  citizen  of  the  state  of ,  residing  at 


in  the  state  of ,  and  F.  L.,  who  is  a  citizen  of  the  state  of 

,  residing  at in  the  state  of ,  co-partners  ( 1 )  doing 

business  under  the  firm  name  and  style  of  A.  B.  &  Co.,  at 


in  the  state  of ,  plaintiffs  in  this  suit,  complain  of  the  defend- 
ants, C.  D.,  who  is  a  citizen  of  the  state  of ,  residing  at 


in  the division  of  the district  of  said  state,  and  B.  R., 

who  is  a  citizen  of  the  state  of ,  residing  at in  the 

division  of  the district  of  said  state,  co-partners  (1)  doing 

business  under  the  firm  name  and  style  of  C.  D.  &  Co.,  at 

in  the  state  of (2)  aforesaid,  and  say: 

(1)  See  note  (1)  to  No-  4. 

(2)  See  notes  (2)  to  Nos.  2,  3  and  4. 


ALLEGATIONS  OF    CITIZENSHIP.  y 

No.  7. 

A  Corporation  against  a  Corporation. 

[Caption.] 

The  A.  B.  Co.,  a  corporation  (1)  organized  and  existing  under 

the  laws  of  the  state  of  ,  and  having  its  principal  place  of 

business  at in  said  state,  plaintiff  in  this  suit,  complains  of 

the  defendant,  The  C.  D.  Co-,  a  corporation  organized  and  exist- 
ing under  the  laws  of  the  state  of ,  having  its  principal 

place  of  business  at  in  said  state,  and  an  inhabitant  (2)  of 

the division  of  the district  of aforesaid,  and  says : 

(1)  The  Judiciary  Acts  have  never  named  corporations  and  a 
corporation  is  not  a  "citizen"  within  the  meaning  of  the  Constitution. 
Blake  v.  McClung,  172  U.  S.  239,  259,  43  L.  Ed.  432;  Muller  v.  Dows, 
94  U.  S.  444,  24  L.  Ed.  207. 

It  is  regarded  as  a  citizen  for  jurisdictional  purposes  on  the 
theory  that  a  suit  by  or  against  it  is  a  suit  by  or  against  its 
members  individually,  who  are  conclusively  presumed  in  law  to  be 
citizens  of  the  state  creating  it.  For  the  purpose  of  showing  citizen- 
ship, it  is  therefore  necessary  to  aver  under  what  laws  the  corporation 
was  brought  into  existence.  Muller  v.  Dows,  94  U.  S.  444,  24  L.  Ed. 
207;  Marshall  v.  Baltimore  &  O.  R.  Co.,  16  How.  314,  14  L.  Ed.  953; 
Doctor  V.  Harrington,  196  U.  S.  579,  49  L.  Ed.  605;  Southern  Ry.  Co. 
V.  Allison,  190  U.  S.  326,  47  L.  Ed.  1078;  Parker-Washington  Co,  v. 
Cramer  (7th  Cir.),  201   Fed.  878,  120  C.  C.  A.  216. 

The  same  rule  prevails  with  respect  to  alien  corporations.  Steam- 
ship Co.  V.  Tugman,  106  U.  S.  118,  27  L.  Ed.  87. 

That  a  county  is  a  corporation  for  purposes  of  federal  jurisdiction, 
see  Lincoln  County  v.  Luning,  133  U.  S.  530,  33  L.  Ed.  766. 

Likewise  a  township,  see  Loeb  v.  Columbia  Township,  179  U.  S. 
472,  45  L.  Ed.  280. 

Likewise  a  city,  see  Newgass  v.  New  Orleans,  33  Fed.  196;  New 
Orleans  v.  Quinlan,  173  U.  S.  191,  43  L.  Ed.  664;  Emsheimer  v.  New 
Orleans,  186  U.  S.  33,  46  L.  Ed.  1047. 

Form  of  allegation.  Tt  has  been  held  sufficient  to  aver  that  a 
party  "is  a  corporation  organized  and  domiciled  in  the  State  of  New 
York."  Ward  v.  Blake  Mfg.  Co.  (8th  Cir.),  56  Fed.  437,  5  C.  C.  A. 
538.  Or  "is  a  body  corporate  by  an  act  of  the  general  assembly  of 
Maryland."  Marshall  v.  Baltimore  &  O.  R.  Co.,  16  How.  314,  14 
L.  Ed.  653.  Or  "is  an  association  of  persons  duly  incorporated  under 
the  laws  of  Maryland."  Baltimore  &  O.  R.  Co.  v.  McLaughlin  (6th 
Cir.),  73  Fed.  519,  19  C.  C.  A.  551.  Or. "is  a  corporation  under  the 
laws  of  the  State  of  Virginia  and  a  citizen  of  Virginia  and  a  resident 
of  the  western  division  of  that  state."  Mathieson  Alkali  Wks.  v. 
Mathieson  (4th  Cir.)  150  Fed.  241,  80  C.  C.  A.  129.  Or  "created  by, 
and  existing  under,  the  laws  of  the  United  Kingdom  of  Great  Britain 


10  JURISDICTION. 

and  Ireland."  National  Steamship  Co.  v.  Tugman,  106  U.  S.  118,  24 
L.  Ed.  187. 

It  has  been  held  insufficient  to  show  corporate  origin  to  allege  a 
corporation  to  be  "a  citizen"  of  a  particular  state.  Lafayette  Ins. 
Co.  V.  French,  18  How.  404,  15  L.  Ed.  451;  Parker-Washington  Co.  v. 
Cramer  (7th  Cir.),  201  Fed.  878,  120  C.  C.  A.  216;  Knight  v.  Lumber 
Co.  (5th  Cir.),  136  Fed.  404,  69  C.  C.  A.  248;  Atlantic  Coast  Line  v. 
Whilden  (5th  Cir.),  195  Fed.  263;  Dalton  v.  Milwaukee  Mechanics 
Ins.  Co.,  118  Fed.  876;  Parker-Washington  Co.  v.  Cramer,  201  Fed. 
878,  120  C.  C  A.  216.  But  see  Grand  Trunk  Ry.  Co.  v.  Tennant 
(1st  Cir.)  66  Fed.  922,  14  C.  C.  A.  190;  Chicago  Lumber  Co.  v.  Corn- 
stock  (7th  Cir.),  71  Fed.  477,  18  C  C.  A  207;  Gorham  Mfg.  Co.  v. 
Weinstraub,  176  Fed.  927.  Or  that  it  "operates  a  railroad  as  a  com- 
mon carrier  and  has  an  agent"  in  a  certain  state.  St.  Louis,  I.  M.  & 
S.  Ry.  Co.  V.  Newcom  (8th  Cir.),  56  Fed.  951,  6  C.  C.  A.  172.  Or  "is 
a  corporation  duly  organized  by  law,  having  its  principal  place  of 
business  in  Boston  in  the  State  of  Massachusetts."  New  York  & 
N.  E.  R.  Co.  V.  Hyde  (1st  Cir.),  56  Fed.  188,  5  C  C.  A.  461.  Or  "is  a 
New  York  corporation."  Pacific  Postal  Telg.  Cable  Co.  v.  Irvine, 
49  Fed.  113.  Or  "is  a  body  politic  in  the  law  of,  and  doing  business 
in,  the  State  of  California."  In  Pennsylvania  v-  Quicksilver  Co., 
10  Wall.  553,  556,  19  L.  Ed.  998,  Mr.  Justice  Nelson  said:  "The 
court  is  of  opinion  that  this  averment  is  insufficient  to  establish  that 
the  defendant  is  a  California  corporation.  It  may  mean  that  the 
defendant  is  a  corporation  doing  business  in  that  state  by  its  agent; 
but  not  that  it  had  been  incorporated  by  the  laws  of  the  state."  Or 
"is  a  corporation  with  its  principal  office  in  the  City  of  Pensacola, 
Florida."  McGaskill  v.  Dickson  (5th  Cir.),  159  Fed.  704,  86  C.  C.  A. 
572.  Or  that  "the  defendant  claims  to  be  a  corporation  organized 
and  existing  under  the  laws  of  the  State  of  Washington  as  a 
boom  company,"  and  denies  that  it  has  complied  with  those  laws 
or  is  entitled  to  certain  rights  which  it  claims  as  a  boom  company. 
Lownsdale  v.  Gray's  Garbor  Boom  Co.,  117  Fed.  983. 

(2)  See  notes  (2)  to  Nos.  2  and  3.  Sections  51,  52  and  53,  Judicial 
Code. 

The  domicile  of  a  corporation  is  the  state  in  which  it  was  created 
and  it  can  not  change  its  domicile.  Southern  Ry.  Co.  v.  Allison,  190 
U.  S.  326,  47  L.  Ed.  1078:  Shaw  v.  Quincy  Mining  Co.,  145  U.  S.  444. 
36  L.  Ed.  768;  Southern  Pacific  Co.  v.  Denton,  146  U.  S.  202,  36 
L.  Ed.  942;  Baldwin  v.  Pacific  Power,  etc.,  Co.,  199  Fed.  291. 

If  a  corporation  be  created  by  the  laws  of  a  state  in  which  there 
are  two  judicial  districts,  it  should  be  considered  an  inhabitant  of 
that  district  and  division  in  which  its  general  offices  are  situated, 
and  in  which  its  general  business  is  done.  Galveston,  etc.,  R.  Co.  v. 
Gonzales,  151  U.  S.  496,  504,  38  L.  Ed.  248;  Harvey  v.  Richmond, 
etc.,  R.  Co.,  64  ped.  19;  Grabsky  v.  Belmont  Coal  Mining  Co.,  210 
Fed.  553. 


ALLEGATIONS  OF  CITIZENSHIP.  11 

A  railroad  corporation  created  under  an  Act  of  Congress  is  not  a 
citizen  of  any  state  and  the  statutes  do  not  confer  federal  jurisdic- 
tion thereover  under  the  rule  of  diversity  of  citizenship,  whereas  in 
the  case  of  national  banks  the  statute,  Judicial  Code,  Section  24, 
paragraph  16,  state  citizenship  is  conferred  for  all  but  a  few  mentioned 
kinds  of  suits.  Bankers  Trust  Co.  v.  Texas  &  Pacific  Ry.  Co.,  241 
U.  S.  295,  60  L.  Ed.  1010. 


No.  8. 

A  Citizen  against  a  Corporation  (1). 

[Caption.] 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  residing  at  

in  the  state  of ,  plaintiff  in  this  suit,  complains  of  the  defend- 
ant, The  C.  D.  Co.,  a  corporation  organized  and  existing  under 

the  laws  of  the  state  of ,  having  its  principal  place  of  business 

at  ,  and  an  inhabitant  of  the division  of  the  dis- 
trict of  aforesaid,  and  says : 

(1)  See  notes  to  Nos.  2  and  7. 


No.  9. 
A  Citizen  against  a  Corporation  of  Two  or  More  States  (1). 
[Caption.] 

,    A.  B.,  who  is  a  citizen  of  the  state  of ,  residing  at  

in  the  state  of ,  plaintiff  in  this  suit,  complains  of  the  defend- 
ant, The  C.  D.  Co.,  a  corporation  organized  and  existing  under 

and  by  virtue  of  the  laws  of  the  states  of ,  of  and  of 

,  by  the  consolidation  of  three  other  corporations,  severally 

created  by  the  laws  of  those  states  respectively,  and,  for  the  pur- 
poses of  this  suit,  is  an  inhabitant  (1)  of  the  division  of 

the district  of aforesaid,  and  says : 

(1)  See  notes  to  No.  7. 

The  status  of  such  corporations  for  jurisdictional  purposes  is  that 
wherever  the  corporation  sues  or  is  sued  in  a  state  by  whose  laws 
it  has  been  created,  and  the  question  of  citizenship  is  involved,  the 
court  will  regard  the  corporation  intended  as  a  party  as  the  one 
created  and  existing  by  the  laws  of  the  state  in  which  the  suit  is 
brought.  Muller  v.  Dows,  94  U.  S.  444,  24  L.  Ed.  207;  Chicago  & 
N.  W.  R.  Co.  V.  Whitton,  13  Wall.  270,  20  L.  Ed.  571;  Nashua  R. 
Co.  V.  Lowell  R.  Co.,  136  U.  S.  356,  34  L.  Ed.  363;  Patch  v.  Wabash 


12  JURISDICTION. 

R.  Co.,  207  U.  S.  277,  52  L.  Ed.  204;  Lake  Shore,  etc.  R.  Co.  v.  Eder 
(6th  Cir.),  174  Fed.  944,  98  C.  C.  A.  556;  Williamson  v.  Krohn  (6th 
Cir).  66  Fed.  655,  662.  13  C.  C.  A.  668. 

Where  the  consolidated  corporation  is  authorized  by  the  reciprocal 
legislation  of  two  or  more  states,  a  citizen  of  one  state  authorizing 
the  consolidation,  may  sue  the  corporation  in  a  federal  court  in 
another  state  likewise  authorizing  it.  Muller  v.  Dows,  94  U.  S.  444, 
24  L.  Ed.  207;  Chicago  &  N.  W.  R.  Co.  v.  Whitton,  13  Wall.  270,  20 
L.  Ed.  571;  Lake  Shore,  etc.  R.  Co.  v.  Eder  (6th  Cir.),  174  Fed.  944, 
98  C.  C.  A.  556;  Williamson  v.  Krohn  (6th  Cir.),  66  Fed.  655,  662,  13 
C.  C.  A.  668;  Boston  &  M.  R.  Co.  v.  Hurd  (1st  Cir.).  108  Fed.  117, 
47  C.  C.  A.  615. 

But  he  can  not  sue  it  in  a  federal  court  in  the  state  of  which 
he  is  a  citizen.  Patch  v.  Wabash  R.  Co..  207  U.  S.  277,  52  L.  Ed. 
204;  Memphis  &  Charleston  R.  Co.  v.  Alabama,  107  U.  S.  581.  21 
L.  Ed.  518;  Winn  v.  Wabash  R.  Co..  118  Fed.  55;  Goodwin  v. 
Boston  &  M.  R.  Co.,  127  Fed.  986;  Goodwin  v.  New  York,  N.  H.  & 
H.  R.  Co.,  124  Fed.  358;  Baldwin  v.  Chicago  &  N.  W.  R.  Co, 
86  Fed.  167. 

A  consolidated  corporation  can  not  sue  a  citizen  of  one  of  the 
states,  authorizing  the  combination,  in  a  federal  court  of  that  state, 
because  the  corporation  is  regarded  as  a  citizen  of  the  state  in  which 
the  suit  is  brought;  but  it  may  bring  the  suit  in  a  federal  court  in 
one  of  the  states  of  which  the  defendant  is  not  a  citizen,  because 
diversity  of  citizenship  will  exist  in  such  cases. 

A  suit  may  be  maintained  by  one  constituent  corporation  of  a 
consolidated  company  against  another  constituent  in  a  district  court 
for  a  state  other  than  that  creating  the  plaintiff  constituent.  In 
Nashua  R.  Co.  v.  Lowell  R.  Co.,  135  U.  S.  356.  34  L.  Ed.  363,  a  New 
Hampshire  corporation  sued  a  Massachusetts  corporation  in  the 
circuit  court  in  Massachusetts.  By  reciprocal  legislation  of  both 
states  they  had  been  united  for  the  purposes  of  management  and 
operation  and  their  stock  had  been  fused.  The  plea  that  there  was 
no  diversity  of  citizenship  was  overruled  and  the  jurisdiction  sus- 
tained. 

An  action  in  tort  will  He  against  a  consolidated  company  in  the 
federal  court  of  one  state  creating  it,  by  a  citizen  of  another  state, 
although  the  tort  complained  of  was  committed  in  one  of  the  other 
states  authorizing  the  combination.  In  Lake  Shore,  etc.  R.  Co.  v. 
Eder  (6th  Cir.),  174  Fed.  944,  98  C.  C.  A.  556,  jurisdiction  was  sus- 
tained in  a  suit  against  a  consolidated  company  in  Ohio  by  a  citizen 
of  Pennsylvania,  where  the  injury  was  received  in  Pennsylvania  and 
the  company  was  organized  under  the  laws  of  Ohio  and  Pennsylvania. 
That  is  to  say,  one  constituent  corporation  is  liable  for  the  negligent 
acts  of  another  constituent  corporation  of  the  same  consolidated 
company.  The  theory  is  that,  by  reason  of  the  relation  of  the  several 
constituent  corporations  in  the  consolidated  company,  having  a  com- 


ALLEGATIONS  OF  CITIZENSHIP.  13 

mon  stock,  directors  and  management,  they  are  jointly  liable  in 
such  cases.  Consequently,  either  company  may  be  sued.  See  also 
discussion  by  Mr.  Justice  Harlan  in  dissenting  opinion  in  St.  Louis, 
etc.  R.  Co.  V.  James,  161  U.  S.  545,  570,  40  L.  Ed.  802;  and  Pennsylvania 
R.  Co.  V.  Jones,  155  U.  S.  333.  39  L.  Ed.  176. 


No.  10. 

A  Corporation  against  a  Citizen  (1). 

[Caption.] 

The  A.  B.  Co.,  a  corporation  organized  and  existing  under  the 
laws  of  the  state  of ,  and  having  its  principal  place  of  busi- 
ness at in  said  state,  plaintiff  in  this  suit,  ocmplains  of  the 

defendant,  C.  D.,  who  is  a  citizen  of  the  state  of ,  residing  at 

in  the  state  of ,  and  an  inhabitant  of  the division 

of  the district  of  aforesaid,  and  says: 

(1)  See  notes  to  Nos.  2,  7  and  9. 


No.  11. 

A  Firm  against  a  Corporation  (1). 

[Caption.] 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  residing  at  

in  the  state  of  and  R.  S.,  who  is  a  citizen  of  the  state  of 

,  residing  at  in  the  state  of  ,  co-partners  doing 

business  under  the  firm  name  and  style  of  A.  B.  &  Co.,  at 


in  the  state  of ,  plaintiffs  in  this  suit,  complain  of  the  defend- 
ant. The  C.  D.  Co.,  a  corporation  organized  and  existing  under 
the  laws  of  the  state  of  ,  having  its  principal  place  of  busi- 
ness at in  said  state,  and  an  inhabitant  of  the division 

of  the district  of  aforesaid,  and  says: 

(1)   See  notes  to  Xos.  4,  7  and  9. 


No.  12. 

A  Corporation  against  a  Firm  (1). 
[Caption.] 

The  A.  B.  Co.,  a  corporation  organized  and  existing  under  the 
laws  of  the  state  of ,  and  having  its  principal  place  of  busi- 


14  JURISDICTION. 

ness  at in  said  state,  plaintiff  in  this  suit,  complains  of  the 

defendants,  C  D.,  who  is  a  citizen  of  the  state  of  ,  residing 

at  in  the  division  of  the  district  of  said  state, 

and  B.  R.,  who  is  a  citizen  of  the  state  of ,  residing  at 

in  the division  of  the district  of  said  state,  co-partners 

doing  business  under  the  firm  name  and  style  of  C.  D.  &  Co., 
at in  the  state  of aforesaid,  and  says: 

(1)  See  notes  to  Xos.  2,  3,  4  and  7. 


No.  13. 

An  Infant  Suing  by  His  Guardian. 

[Caption.] 

A.  B.,  plaintiff  in  this  suit,  who  is  a  minor  and  a  citizen  (1)  of 

the  state  of  ,  residing  at  in  said  state,  sues  by  his 

guardian,  G.  L.,  who  has  been  duly  appointed  and  qualified  by 

the  probate  court  of  the county  in  the  state  of as  his 

guardian  and  is  now  so  acting,  and  complains  of  the  defendant 
[continue  from  this  point  as  w  No-  2,  if  the  defendant  is  an 
individual ;-  as  in  No.  4  if  the  defendant  is  a  firm;  as  in  No.  7 
if  the  defendant  is  a  corporation;  as  in  No.  34  if  the  defendant 
is  an  alien;  or  as  may  be,  according  to  the  character  of  the 
defendant]. 

(1)  Where  a  suit  is  instituted  in  the  name  of  the  ward  by  his 
guardian  or  next  friend,  it  is  on  the  citizenship  of  the  infant,  without 
regard  to  the  citizenship  of  the  guardian  or  next  friend,  that  the 
jurisdiction  of  the  district  court  depends.  Morgan  v.  Potter,  157 
U.  S.  195,  39  L.  Ed.  670;  Blumenthal  v.  Craig  (3d  Cir.),  81  Fed.  320, 
26  C  C.  A.  427;  Voss  v.  Neineber,  68  Fed.  947;  Woolridge  v.  McKenna, 
8  Fed.  650;  Dodd  v.  Chiselin,  27  Fed.  405;  Williams  v.  Ritchey,  No. 
17734  Fed  Cas.,  3  Dill.  406.     But  see  In  re  McClean,  26  Fed.  49. 

Where  the  general  guardian  has  the  right  to  bring  suit  in  his  own 
name  as  such  guardian,  under  the  state  law,  and  does  so,  he  is  the 
party  plaintiff  and  it  is  on  his  citizenship  and  not  that  of  the  ward 
that  federal  jurisdiction  depends.  Mexican  Cent.  R.  Co.  v.  Eckman, 
187  U.  S.  429,  47  L.  Ed.  245;  Pennington  v.  Smith  (2d  Cir.),  78  Fed. 
399,  409,  24  C.  C.  A.  125- 

Citizenship  of  an  infant.  The  citizenship  of  a  child  is  that  of  his 
father  and  he  may  change  the  citizenship  of  the  infant  by  changing 
his  own.  Lamar  v.  Micou,  112  U.  S.  452,  470,  28  L.  Ed.  751;  Toledo 
Traction  Co.  v  Cameron   (6th   Cir.),  137  Fed.  48,  56,  69  C.  C.  A.  28; 


ALLEGATIONS  OF    CITIZENSHIP.  15 

Marks  v.  Marks,  75  Fed.  321,  325.  After  the  death  of  the  father  the 
citizenship  of  the  infant  is  that  of  the  mother,  while  she  remains 
a  widow;  and  she  may  likewise  change  the  citizenship  of  the  infant 
by  changing  her  own  domicile.  Lamar  v.  Micou,  112  U.  S.  452,  470, 
28  L.  Ed.  751. 

When  the  parents  are  judicially  separated  and  the  custody  of  the 
child  is  awarded  to  the  mother,  the  citizenship  of  the  infant  follows 
the  domicile  of  the  mother.  Toledo  Traction  Co.  v.  Cameron  (6th 
Cir.),  137  Fed.  48,  56,  69  C.  C.  A.  28.  When  the  widow  or  divorced 
woman  marries  again,  she  acquires  the  citizenship  of  her  second 
husband  and  does  not  thereafter  possess  the  power  to  change  the 
citizenship  of  the  infant.  Lamar  v.  Micou,  112  U.  S.  452,  470,  28  L. 
Ed.  751;  Marks  v.  Marks,  75  Fed.  321,  325. 

An  infant  can  not  change  his  own  domicile.  Lamar  v.  Micou,  112 
U.  S.  452,  470,  28  L.  Ed.  751;  Marks  v.  Marks,  75  Fed.  321,  325.  A 
guardian  can  not  change  the  citizenship  of  his  ward.  Lamar  v. 
Micou,  112  U.  S.  452,  28  L.  Ed.  751. 

The  citizenship  existing  at  the  time  of  the  death  of  his  parents, 
or  the  marriage  of  his  widowed  mother,  continues  until  another  is 
acquired.     Marks  v.  Marks,  75  Fed.  321,  325. 

An  infant  may  acquire  the  domicile  of  his  grandparents,  who  are 
his  next  of  kin,  where  he  takes  up  his  residence  at  their  home  after 
the  death  of  his  parents.    Lamar  v.  Micou,  114  U.  S.  218,  29  L.  Ed.  94. 

Foreign  guardians-  The  authority  of  a  guardian,  like  that  of  an 
executor  or  administrator,  appointed  by  a  court  of  one  state,  is 
limited  to  that  state,  and  he  can  not  sue  in  a  court,  even  of  the 
United  States,  held  within  any  other  state,  except  so  far  as  author- 
ized to  do  so  by  its  laws.  Morgan  v.  Potter,  157  U.  S.  195,  39  L.  Ed. 
670;  In  re  Kingsley,  160  Fed.  275. 


No.  14. 

An  Infant  Suing  by  His  Next  Friend. 

[Caption.] 

A.  B.,  plaintiff  in  this  suit,  who  is  a  minor  under  the  age  of 
twenty-one  years,  without  regular  guardian,  and  a  citizen   (1) 

of  the  state  of  ,  residing  at  in  said  state,  sues  by  his 

next  friend,  G.  L.,  and  complains  of  the  defendant  [continue 
from  this  point  as  in  No.  2,  if  the  defendant  is  an  individual ; 
as  in  No.  4  if  the  defendant  is  a  firm;  as  in  No.  7  if  the  defendant 
IS  a  corporation;  as  in  No.  ?./  if  the  defendant  is  an  alien;  or  as 
may  be,  according  to  the  character  of  the  defendant]. 

(n   See  note  to  No.  13. 


16  JURISDICTION. 

No.  15. 

An  Insane  Person  Suing  by  His  Guardian  or  Curator. 

[Caption.] 

A.  B,,  plaintiff  in  this  suit,  who  is  an  insane  person  and  a  citi- 

zen(l)  of  the  state  of ,  residing  at in  said  state,  sues  by 

his  guardian  [or  curator],  who  has  been  duly  and  legally  ap- 
pointed and  qualified  guardian  of  the  said  A,  B.,  an  insane  person, 

under  the  appointment  of  the  probate  court  of county,  in  the 

state  of  ,  and  is  now  so  acting,  complains  of  the  defendant 

[continue  from  this  point  as  in  No.  2,  if  the  defendant  is  an  indi- 
vidual; as  in  No.  ^,  if  the  defendant  is  a  firm;  as  in  No.  y,  if  the 
defendant  is  a  corporation ;  as  in  No.  ^4,  if  the  defendant  is  an 
alien;  or  as  may  be,  according  to  the  character  of  the  defendant]. 

(1)  Where  a  suit  is  instituted  on  behalf  of  an  insane  person  by 
his  guardian  or  curator,  it  is  on  the  citizenship  of  the  insane  person 
that  the  jurisdiction  of  the  district  court  depends.  Stout  v-  Rigney 
(8th  Cir.),  107  Fed.  545,  46  C.  C.  A.  459;  Wilcoxen  v.  Chicago,  Q.  & 
B.  R.  Co.,  116  Fed.  444;  Wiggins  v.  Bethune,  29  Fed.  51.  The  citizen- 
ship of  the  guardian  or  curator  is  immaterial. 


No.  le. 

By  an  Administrator. 

[Caption.] 

A.  B.,  plaintiff  in  this  suit,  who  is  a  citizen(l)  of  the  state  of 

— ,  residing  at  in  said  state,  says  that  on  or  about  the 

—  day  of ,  19 — ,  E.  C.  died  intestate  and  that  thereafter, 


to-wit,  on  the  day  of  ,  19 — ,  the  plaintiff  was,  by  an 

order  of  the  probate  court  for  the  county  of  ,  in  the  state 

of ,  duly  and  regularly  appointed  as  his  administrator,  and 

that  thereafter  he  duly  qualified  as  such  and  is  now  the  duly 
appointed,  qualified  and  acting  administrator  of  said  estate  and 
as  such  administrator  he  complains  of  the  defendant  [continue 
from  this  point  as  in  No.  2,  if  the  defendant  is  an  individual; 
as  in  No.  4,  if  the  defendant  is  a  firm ;  as  in  No.  7,  if  the  defend- 
ant is  a  corporation;  as  in  No.  ^4,  if  the  defendant  is  an  alien; 
or  as  may  be,  according  to  the  character  of  the  defendant]. 


ALLEGATIONS   OF    CITIZENSHIP.  17 

(1)  In  suits  brought  by  or  against  an  administrator  or  executor, 
the  citizenship  of  the  administrator  or  executor,  and  not  that  of  the 
decedent,  beneficiary,  legatee  or  creditor,  determines  the  jurisdiction 
of  the  district  court  founded  on  diversity  of  citizenship.  Continental 
Ins.  Co.  V.  Rhoades,  119  U.  S.  237,  30  L.  Ed.  380;  Hess  v.  Reynolds, 
113  U.  S.  73,  76,  28  L.  Ed.  927;  Amory  v.  Amory,  95  U.  S.  186,  24  L. 
Ed.  428;  Rice  v.  Houston,  13  Wall.  66,  20  L.  Ed.  484;  Chappedelaine 
V.  Dechenaux,  4  Cranch.  306,  2  L.  Ed.  269;  Childress  v.  Emory,  8 
Wheat.  642,  667,  5  L.  Ed.  705;  Monmouth  Inv.  Co.  v.  Means  (8th 
Cir.),  151  Fed.  159,  80  C.  C.  A.  527;  Cincinnati,  H.  &  D.  R.  Co.  v. 
Thiebaud  (6th  Cir.)  114  Fed.  918,  52  C.  C.  A.  538;  Wilson  v.  Smith, 
66  Fed.  81;  Semmes  v.  Whitney,  50  Fed.  666;  Popp  v.  Cincinnati,  H. 
&  D.  R.  Co.,  96  Fed.  465;  Gofif's  Adm.  v.  Norfolk  &  W.  Ry.  Co.,  36 
Fed.  102. 

The  status  of  the  parties  is  not  aflfected  by  the  fact  that  creditors 
and  legatees  of  the  decedent  are  citizens  of  the  same  state  with  the 
adverse  parties.  Osborn  v.  United  States  Bank,  9  Wheat.  738,  856, 
6  L.  Ed.  204;  Harper  v.  Norfolk  &  W.  Ry.  Co.,  36  Fed.  102. 

Citizenship  of  administrator  or  executor.  For  jurisdictional 
purposes,  the  administrator  or  executor  is  a  citizen  of  the  state  of 
his  domicile,  without  regard  to  the  situs  of  the  property  or  the  state 
of  his  appointment.  Rice  v.  Houston,  13  Wall.  666,  20  L.  Ed.  484; 
Amory  v.  Amory,  95  U.  S.  186,  24  L.  Ed.  428;  Wilson  v.  Smith,  66  Fed. 
81;  Gofif's  Adm.  v.  Norfolk  &  W.  Ry.  Co.,  36  Fed.  299;  Semmes  v. 
Whitney,  50  Fed.  666;  Laubscher  v.  Fay,  197  Fed.  879;  McDufifie  v. 
Montgomery,  128  Fed.  105. 

It  is  his  citizenship  at  the  time  the  suit  is  begun  that  controls. 
Rice  V.  Houston,  13  Wall.  66,  20  L.  Ed.  484;  Gofif's  Adm.  v.  Norfolk 
&  W.  Ry.  Co.,  36  Fed.  299. 

The  administrator  or  executor  may  change  his  citizenship  at 
p'.ea-^ure.    Rice  v.  Houston,  13  Wall.  66,  20  L.  Ed.  484. 

An  administrator  may  be  selected  for  the  purpose  of  conferring 
.   risdiction.     Cincinnati,  H.  &  D.  R.   Co.  v.  Thiebr.^.^   (6th  Cir.),  114 

i.  918.  52  C.  C.  A.  538;  Gofif's  Adm.  v.  Norfolk  &  v» .  Ry.  Co.,  36 
-■  \.  299. 

\lien  representatives,  suing  as  such,  may  invoke  the  jurisdiction 
of  he  district  court,  although  their  decedents  could  not  have  done 
;o.    Chappedelaine  v.  Dechenaux,  4  Cranch.  306,  2  L.  Ed.  269. 


No.  17. 

By  a  Foreign  Administrator, 

[Caption.] 

A.  B.,  plaintiff  in  this  suit,  who  is  a  citizen  (1)  of  the  state  of 
— ,  residing  at  in  said  state,  says  that  on  or  about  the 


18 


JURISDICTION. 


day  of ,  19 — ,  E.  C,  died  intestate  and  that  thereafter, 

to-wit,  on  the  day  of  ,  19 — ,  the  plaintiff  was,  by  an 

order  of  the  probate  court  for  the  county  of  in  the  state 

of ,  duly  and  regularly  appointed  as  his  administrator,  and 

that  thereafter  he  duly  qualified  as  such  and  is  now  the  duly 
appointed,  qualified  and  acting  administrator  of  said  estate  by 

virtue  of  such  appointment,  and  that  on  the  day  of  , 

19 — ,  he  obtained  ancillary  letters  of  administration   from  the 

probate  court  for  the  county  of  in  the  state  of  ,  in 

which  state  this  suit  is  brought,  and  that  he  duly  qualified  and 
is  now  acting  as  administrator  of  said  estate  by  virtue  of  said 
ancillary  letters  of  administration,  and  as  such  administrator  he 
complains  of  the  defendant  [continue  from  this  point  as  in  No.  2, 
if  the  defendant  is  an  individual;  as  in  No.  4,  if  the  defendant 
is  a  firm;  as  in  No.  /,  if  the  defendant  is  a  corporation;  as  in 
No.  34,  if  the  defendant  is  an  alien;  or  as  may  he,  according  to 
the  character  of  the  defendant.] 

(1)  See  notes  to  No.  16. 

When  administrators  and  executors  may  sue  in  states  other  than 
that  of  appointment.  An  executor  or  administrator  appointed  in  one 
state  can  not,  as  such,  maintain  an  action  in  a  federal  court  in  another 
state,  which  has  not,  either  by  the  issue  of  ancillary  letters,  or  some 
special  provision  of  statute,-  given  him  authority  to  sue  in  the  courts 
of  that  state.  Noonan  v.  Bradley,  9  Wall.  394,  19  L.  Ed.  757;  Dennick 
V.  Central  R.  Co.,  103  U.  S.  11,  23  L.  Ed.  437;  Hayes  v.  Pratt,  147 
U.  S.  557,  37  L.  Ed.  279;  Maysville,  etc.  R.  Co.  v.  Marvin  (6th  Cir.) 
59  Fed.  91,  8  C.  C.  A.  21 ;  Graham  v.  Lybrand  (7th  Cir.),  142  Fed.  109, 
73  C.  C.  A.  333. 

In  the  absence  of  a  state  statute  giving  effect  to  the  foreign  ap- 
pointment, the  foreign  representative  must  obtain  a  grant  of  adminis- 
tration in  accordance  with  the  laws  of  the  state  in  which  he  desires  to 
prosecute  the  suit.  Noonan  v.  Bradley,  9  Wall.  394,  19  L.  Ed.  757; 
Dennick  v.  Central  Ry.  Co.,  103  U.  S.  11,  26  L.  Ed.  439;  Leahy  v. 
Haworth  (8th  Cir.),  141  Fed.  850,' 73  C.  C.  A.  84;  Cornell  Co.  v.  Ward 
(2d  Cir.),  168  Fed.  51,  93  C.  C.  A.  473;  Hodges  v.  Kimball  (4th  Cir.), 
91  Fed.  845,  34  C.  C.  A.  103;  Maysville,  etc.  Ry.  Co.  v.  Marvin  (6th 
Cir.),  59  Fed.  91,  8  C.  C.  A.  21;  Dodge  v.  North  Hudson,  177  Fed. 
986,  s.  c.  188  Fed.  489. 

He  may  do  this  after  the  suit  is  begun,  even  after  trial,  and  the 
ancillary  letters  be  averred  by  amendment.  Cornell  Co.  v.  Ward 
(2d  Cir.),  168  Fed.  51,  93  C.  C.  A.  473;  Hodges  v.  Kimball  (4th  Cir.), 
91  Fed.  845,  34  C.  C.  A.  103;  Leahy  v.  Haworth  (8th  Cir.),  141  Fed. 
850,  73  C.  C.  A.  84;   McAleer  v.  Clay  County,  38  Fed.  707;  Black  v. 


ALLEGATIONS  OF   CITIZENSHIP.  19 

Allen  Co.,  42  Fed.  618;  Swatzel  v.  Arnold,  No.  13682  Fed.  Cas.,  1 
Woolw.  383;  Dodge  v.  North  Hudson,  188  Fed.  489. 

If  the  state  statute  gives  effect  to  the  foreign  appointment,  no 
ancillary  letters  of  administration  are  necessary.  Cincinnati,  H.  & 
D.  R.  Co.  V.  Thiebaud  (6th  Cir.),  114  Fed.  918,  52  C.  C.  A.  538; 
Beaumont  v.  Beaumont,  144  Fed.  288;  Hayes  v.  Pratt,  147  U.  S.  557, 
37  L.  Ed.  279;  Morgan  v.  Potter,  157  U.  S.  195.  39  L.  Ed.  670;  In  re 
Kingsley,  160  Fed.  275;  Cheney  v.  Stowe,  29  Fed.  885;  Lawrence  v. 
Nelson,  143  U.  S.  215,  36  L.  Ed.  130. 

An  executor  or  administrator  may  sue  without  ancillary  letters 
being  granted,  on  a  cause  of  action  accruing  directly  to  him  in  his 
personal  capacity  in  the  district  court,  having  jurisdiction  of  the 
case,  held  in  another  state.  Biddle  v.  Wilkins,  1  Pet.  686,  7  L, 
Ed.  315;  Moore  v.  Kraft  (7th  Cir.),  179  Fed.  685,  103  C.  C.  A.  231; 
Moore  v.  Petty  (8th  Cir.),  135  Fed.  668,  68  C.  C  A.  306;  certiorari 
denied,  197  U.  S.  623,  49  L.  Ed.  911;  Giddings  v.  Green,  48  Fed.  489; 
Newberry  v.  Robinson,  36  Fed.  841. 

If  he  sues  in  his  official  capacity  on  such  a  cause  of  action,  the 
words  so  describing  him  will  be  regarded  as  merely  descriptive  and 
be  rejected  as  surplusage.  Moore  v.  Petty  (8th  Cir.),  135  Fed.  668, 
68  C.  C.  A.  306;  certiorari  denied,  197  U.  S.  623,  49  L.  Ed.  911. 


No.  18. 

By  an  Administrator  de  Bonis  Non. 

[Caption.] 

A.  B.,  as  administrator  de  bonis  non  of  the  estate  of  E.  C, 
deceased,  plaintiff  in  this  suit,  who  is  a  citizen(l)  of  the  state 

of ,  residing  at in  said  state,  says  that  E.  C,  died  upon 

the day  of ,  19 — ,  and  his  estate  is  being  administered 

in  the  probate  court  of  the  county  of ,  in  the  state  of , 

and  in  the  course  of  such  proceedings  A,  B.,  plaintiff  as  afore- 
said, was  duly  appointed  administrator  de  bonis  non  of  the  estate 

of  the  said  E.  C,  deceased,  upon  the day  of ,  19 — ,  by 

the  said  probate  court  having  competent  jurisdiction  to  so  appoint 
the  plaintiff  as  such  administrator  de  bonis  non,  whereby  the 
plaintiff  became  vested  by  operation  of  law  with  all  of  the  assets 
of  the  estate  of  said  E.  C,  deceased,  not  theretofore  adminis- 
tered, among  which  assets  is  a  claim  against  the  defendant  herein, 
and  he  complains  of  the  defendant  [continue  from  this  point  as 
in  No.  2,  if  the  defendant  is  an  individual ;  as  in  No.  4,  if  the 


20  JURISDICTION. 

defendant  is  a  firm;  as  in  No.  y,  if  the  defendant  is  a  corpora- 
Hon;  as  in  No.  S4>  ^f  f^^  defendant  is  an  alien;  or  as  may  be, 
according  to  the  character  of  the  defendant], 
(1)  See  notes  to  No.  16. 


!To.  19. 

Against  an  Administrator. 
[Caption.] 

[In  a  suit  against  an  administrator,  proceed  to  the  words 
"complains  of  the  defendant"  as  in  No.  2,  if  the  plaintiff  is  an 
individual;  as  in  No.  5,  if  the  plaintiff  is  a  firm;  as  in  No.  /,  if 
the  plaintiff  is  a  corporation;  as  in  No.  55,  if  the  plaintiff  is  an 
alien,  and  then  continue  as  follows]  :  complains  of  the  defendant, 
C.  D.,  as  administrator  of  the  estate  of  L.  H.,  deceased,  who  is 

a  citizen(l)  of  the  state  of  ,  residing  at in  said  state, 

and  an  inhabitant  of  the  division  of  the  district  of 

(2)    aforesaid,   and   says: 

That  on  or  about  the day  of ,  19 — ,  L.  H.  died  intes- 
tate, and  that  thereafter,  to-wit,  on  the day  of  ,  19 — , 

the  defendant  was,  by  an  order  of  the  probate  court  for  the 

county  of in  the  state  of ,  duly  and  regularly  appointed 

as  his  administrator  and  that  thereafter  he  duly  qualified  as 
such  and  is  now  the  duly  appointed,  qualified  and  acting  admin- 
istrator of  said  estate. 

(1)  See  note  (2)  to  No.  16. 

(2)  See  note  (2)  to  No.  2. 


No.  20. 

By  an  Executor. 

[Caption.] 

A.  B.,  plaintiff  in  this  suit,  who  is  a  citizen(l)  of  the  state  of 
residing  at in  said  state,  suing  as  executor  under  the 


last  will  and  testament  of  L.  H.,  deceased,  for  M.  H.,  and  her 
children,  J.  H.  and  C.  H..  says  that  L.  H.,  before  then  a  citizen 

and  resident  of  the  county  of ,  in  the  state  of ,  departed 

this  life  about  the  day  of  ,  19 — ,  having  before  then 

made  his  last  will  and  testament,  which  was  afterwards,  on  the 
day  of ,  19 — ,  duly  admitted  to  probate  in  the  probate 


ALLEGATIONS  OF   CITIZENSHIP.  21 

court  of county,  of  the  state  of ,  and  remains  of  record 

there,  and  that  the  plaintiff  is  now  the  duly  appointed,  qualified 
and  acting  executor  under  the  said  will,  and  as  such  executor 
complains  of  the  defendant  [continue  from  this  point  as  in  No.  2, 
if  the  defendant  is  an  individual ;  as  in  No.  4,  if  the  defendant  is 
a  firm;  as  in  A^o.  /,  if  the  defendant  is  a  corporation;  as  in 
No.  S4,  if  ihe  defendant  is  an  alien;  or  as  may  he,  according  to 
the  character  of  the  defendant^. 

(1)  See  note  (2)  to  No.  16. 


No.  21. 

Against  an  Executor. 

{Caption.^ 

[In  a  suit  against  an  e.vecutor,  proceed  to  the  words  "complains 
of  the  defendant"  as  in  N^o.  2,  if  the  plaintiff  is  an  individual; 
as  in  No.  5,  if  the  plaintiff  is  a  firm;  as  in  No.  7,  if  the  plaintiff 
is  a  corporation;  as  in  No.  jj,  if  the  plaintiff  is  an  alien,  and  then 
continue  as  follows]  :  complains  of  the  defendant,  C.  D.,  in  his 
own  right  and  as  executor  of  the  estate  of  L.  H.,  deceased,  who 

is  a  citizen(l)  of  the  state  of ,  residing  at in  said  state, 

and  an  inhabitant  of  the division  of  the  district  of 

(2)  aforesaid,  and  says: 

That  L.  H.,  before  then  a  citizen  and  resident  of county, 

of  the  state  of  ,  departed  this  life  about  the  day  of 

,  19 — ,  having  before  then  made  his  last  will  and  testament, 

which   was   afterwards   on    the   day  of  ,    19 — ,   duly 

admitted  to  probate  in  the  probate  court  of  county,  in  the 

state  of  ,  and  remains  of  record  there,  and  that  said  C.  D. 

is  now  the  duly  appointed,  qualified  and  acting  executor  under 
said  will. 

(1)  See  note  (2)  to  No.  16. 

(2)  See  note  (2)   to  No.  2. 


No.  22. 

By  a  Trustee. 
[Caption.] 

A.  B.,  who  is  a  citizen(l)  of  the  state  of ,  residing  at 

in  said  state,  as  trustee  for  The  O.  S.  Co.,  a  corporation  duly 


22  JURISDICTION. 

organized  and  existing  under  and  by  virtue  of  the  laws  of  the 

state  of  ,  plaintiff  in  this  suit,  complains  of  the  defendant 

[continue  from  this  point  as  in  No.  2,  if  the  defendant  is  an  indi- 
vidual; as  in  No.  4,  if  the  defendant  is  a  firm;  as  in  No.  y,  if  the 
defendant  is  a  corporation;  as  in  No.  34,  if  the  defendant  is  an 
alien;  or  as  may  be,  according  to  the  character  of  the  defendant]. 

(1)  In  suits  brought  by  or  against  a  trustee,  the  citizenship  of 
the  trustee,  and  not  that  of  the  cestui  que  trust,  determines  the  jurisdic- 
tion of  the  district  court  founded  on  diversity  of  citizenship.  Knapp 
V.  Railroad  Co.,  20  Wall.  117,  22  L.  Ed.  328;  Coal  Co.  v.  Blatchford,  11 
Wall.  172,  20  L.  Ed.  179;  Gardner  v.  Brown,  21  Wall.  36,  22  L.  Ed. 
527;  Dodge  v.  Tulleys,  144  U.  S.  451,  36  L.  Ed.  501;  Mexican,  etc. 
R.  Co.  V.  Eckman,  187  U.  S.  429,  47  L.  Ed.  245;  Thomas  v.  Board  of 
Trustees,  195  U.  S.  207,  218,  49  L.  Ed.  160;  Morris  v.  Lindauer  (6th 
Cir.),  54  Fed.  23,  4  C.  C.  A.  162;  Shipp  v.  Williams  (6th  Cir.),  62  Fed. 
4,  10  C.  C.  A.  247;  Rust  v.  Brittle  Silver  Co.  (8th  Cir.),  58  Fed.  611, 
7  C.  C.  A.  389;  Griswold  v.  Bacheller,  75  Fed.  470;  Wade  v.  Sewell, 
56  Fed.  129;  Allen-West  Commission  Co.  v.  Brashear,  176  Fed.  199; 
Mason  v.  Dullagham,  27  C.  C.  A.  296,  note  on  page  298. 

The  citizenship  of  the  beneficiaries  is  immaterial.  Dodge  v. 
Tulleys,  144  U.  S.  451,  36  L.  Ed.  501;  Coal  Co.  v.  Blatchford,  11  Wall. 
172,  20  L.  Ed.  179;  Shipp  v.  Williams  (6th  Cir.),  62  Fed.  4,  10  C  C.  A. 
247;  Griswold  v.  Bacheller,  75  Fed.  471;  Glenn  v.  Walker,  27  Fed. 
577;  Morris  v.  Lindauer  (6th  Cir.),  54  Fed.  23,  4  C.  C.  A.  162;  Bonna- 
fee  v.  Williams,  3  How.  574,  11  L.  Ed.  732;  Reinach  v.  Atlantic,  etc. 
R.  Co.,  58  Fed.  33. 

For  jurisdictional  purposes,  the  trustee  is  a  citizen  of  the  state 
of  his  domicile,  even  when  appointed  in  another  state  in  which  the 
trust  property  is  situated.  Shirk  v.  LaFayette,  52  Fed.  857;  Glenn  v. 
Walker,  27  Fed.  577.  See  also  Rice  v.  Houston,  13  Wall.  66,  20 
L.  Ed.  484. 

Where  a  trustee  is  a  mere  title  holder  without  power  to  direct  or 
control  litigation,  it  is  the  citizenship  of  the  real  parties  to  the 
controversy  and  not  that  of  the  trustee  that  determines  jurisdiction. 
Sharpe  v.  Bonham,  224  U.  S.  241,  56  L.  Ed.  747;  Helm  v.  Zarecor,  222 
U.  S.  32,  56  L.  Ed.  77;  Walden  v.  Skinner,  101  U.  S.  577,  589,  25  L. 
Ed.  963;  Browne  v.  Strode,  5  Cranch,  303,  3  L.  Ed.  108  and  McNutt  v. 
Bland,  2  How.  9,  11  L.  Ed.  159,  as  explained  in  Coal  Co.  v.  Blatch- 
ford, 11  Wall.  172,  20  L.  Ed.  179;  Einstein  v.  Georgia  Southern,  etc. 
Ry.  Co.,  120  Fed.  1008. 

The  citizenship  of  such  trustees  will  not  defeat  jurisdiction  over 
a  controversy  between  the  real  litigants,  having  the  requisite  diversity 
of  citizenship.  Walden  v.  Skinner,  101  U.  S.  577,  588-9,  25  L.  Ed.  963; 
Browne  v.  Strode,  S  Cranch,  303,  3  L.  Ed.  108  and  McNutt  v.  Bland. 
2  How.  9,  11  L.  Ed.  159,  as  explained  in  Coal  Co.  v.  Blatchford,  11 
Wall.  172,  20  L.  Ed.  179. 


ALLEGATIONS  OF   CITIZENSHIP.  23 

Trustees  are  governed  by  the  general  rule  that  if  there  are  several 
co-plaintiffs  each  plaintiff  must  be  competent  to  sue,  and  if  there  are 
several  co-defendants  each  defendant  must  be  liable  to  be  sued. 
Coal  Co.  V.  Blatchford,  11  Wall.  172,  20  L.  Ed.  179. 

Trustees  are  regularly  aligned  on  the  side  with  the  beneficiaries. 
Pacific  R.  Co.  V.  Ketchum,  101  U.  S.  289,  25  L.  Ed.  932;  Blacklock  v. 
Small,  127  U.  S.  96,  32  L.  Ed.  70;  Shipp  v.  Williams  (6th  Cir.),  62  Fed. 
4,  10  C.  C.  A.  247;  Farmers  Loan  &  T.  Co.  v.  Lake  St.  Elevated  R. 
Co.  (7th  Cir.),  122  Fed.  914,  59  C.  C.  A.  140;  Reinach  v.  Atlantic,  etc.. 
R.  Co.,  58  Fed.  33;  Bowdoin  College  v.  Merritt,  63  Fed.  213;  Allen- 
West  Commission  Co.  v.  Brashear,  176  Fed.  119;  Caylor  v.  Cooper, 
165  Fed.  757. 

Mere  refusal  on  the  part  of  a  trustee  to  act  or  bring  suit  is  not 
sufficient  to  change  this  rule.  Pacific  R.  Co.  v.  Ketchum,  101  U.  S. 
289,  25  L.  Ed.  932;  Shipp  v.  Williams  (6th  Cir.),  62  Fed.  4,  10  C.  C.  A. 
247;  Farmers  Loan  &  T.  Co.  v.  Lake  St.  Elevated  R.  Co.  (7th  Cir.), 
122  Fed.  914,  59  C.  C.  A.  140;  Barry  v.  Missouri,  etc.  R.  Co.,  27  Fed. 
1;  Arapahoe  Co.  v.  Kansas  Pacific  Ry.  Co.,  No.  502  Fed.  Cas.,  4 
Dill.  277;  Allen-West  Commission  Co.  v.  Brashear,  176  Fed.  119. 
But  see  Einstein  v.  Georgia  Southern  Ry.  Co.,  120  Fed.  1008;  Bowdoin 
College  V.  Merritt,  63  Fed.  213. 

A  trustee  may  be  aligned  as  party  defendant  where  he  is  antagon- 
istic or  adverse  to  the  beneficiaries  suing.  First  Nat.  Bank  v.  Rad- 
ford Trust  Co.  (6th  Cir.),  80  Fed.  569,  26  C.  C.  A.  1;  Robinson  v. 
Alabama  &  Ga.  Mfg.  Co.,  48  Fed.  12;  Rust  v.  Brittle  Silver  Co.  (8th 
Cir.),  58  Fed.  611,  7  C.  C.  A.  389;  Kildare  Lumber  Co.  v.  National 
Bank  of  Commerce  (5th  Cir.),  69  Fed.  2,  16  C.  C  A.  107;  Redfield  v. 
Baltimore  &  O.  R.  Co.,  124  Fed.  929;  Board  of  Trustees  v.  Blair,  70 
Fed.  414. 

Also  where  he  is  a  mere  title-holder  and  the  dispute  is  between 
claimants  to  the  trust  property,  and  to  align  him  with  the  plaintiff 
would  virtually  decide  the  merits  in  their  favor.  Sharpe  v.  Bonham, 
224  U.  S.  241,  56  L.  Ed.  747;  Helm  v.  Zarecor,  222  U.  S.  32,  56  L.  Ed.  11. 


No.  23. 

By   a   Corporation   as    Trustee   under   a    Mortgage,    Deed   of 

Trust,  etc. 

\Capiion.\ 

The  A.   B.    Company,   a  corporation  organized   and   existing 

under  the  laws  of  the  state  of ,  having  its  principal  place  of 

business  at in  said  state,  as  trustee  as  hereinafter  set  forth, 

plaintiff  in  this  suit,  complains  of  the  defendant  [continue  from 
this  point  as  in  A^o.  2,  if  the  defendant  is  an  individual ;  as  in 


24  JURISDICTION. 

No.  4,  if  the  defendant  is  a  firm;  as  in  No.  y,  if  the  defendant 
is  a  corporation;  as  in  No.  S4,  ^f  ihe  defendant  is  an  alien;  or  as 
may  he,  according  to  the  character  of  the  defendant]. 

The  plaintiff,  The  A.  B.  Company,  at  all  the  times  hereinafter 
mentioned  was,  and  still  is,  a  corporation  created  and  existing 

under  and  by  virtue  of  the  laws  of  the  state  of ,  bearing  the 

corporate  name  of  "The  A.  B.  Trust  Company"  ;  and  that  at 
all  times  hereinafter  mentioned  it  was,  and  now  is,  duly  author- 
ized and  empowered,  under  the  terms  of  its  charter,  to  take  and 
hold  in  trust  the  property  transferred  and  conveyed  to  it  upon 
the  trust  hereinafter  stated,  and  to  execute  and  perform  the 
trust  upon  it  imposed  under  and  by  virtue  of  the  terms  and  pro- 
visions of  the  mortgage  [or,  deed  of  trust,  or  as  may  be]  here- 
inafter mentioned. 

See  notes  to  No.  22. 


No.  24. 

By  a  Trustee  in  Bankruptcy. 

[Caption.] 

A.  B.,  as  trustee  in  bankruptcy  of  H.  G.,  plaintiff  in  this  suit,  says 

that  on  the day  of ,  19 — ,  a  petition  in  bankruptcy  was 

filed  against  H.  G.,  in  the  district  court  of  the  United  States  for 

the division  of  the district  of ;  that  thereafter  on 

the day  of ,  19 — ,  the  said  H.  G.  was  duly  adjudicated 

bankrupt  and  that  thereafter  plaintiff  was  duly  elected  trustee 
of  the  estate  of  said  bankrupt  and  has  duly  qualified  as  such 
trustee  and  is  now  so  acting ;  and  that  the  said  H.  G.,  bankrupt, 
is  a  citizen(l)  of  the  state  of residing  at in  said  state. 

The  plaintiff,  as  such  trustee  in  bankruptcy,  complains  of  the 
defendant  [continue  from  this  point  as  in  No.  2,  if  the  defendant 
is  an  individual;  as  in  No.  4,  if  the  defendant  is  a  firm;  as  in 
No.  7,  if  the  defendant  is  a  corporation;  as  in  No.  ^4,  if  the 
defendant  is  an  alien;  or  as  may  be,  according  to  the  character 
of  the  defendant]. 

(1)  The  jurisdiction  conferred  upon  the  circuit  court  in  Section 
23a  of  the  Bankrupt  Act  is  transferred  to  the  district  court  by  Sec- 
tion 291   of  the  Judicial  Code.     Loveland  on   Bankruptcy,  Sec.  70. 


ALLEGATIONS  OF   CITIZENSHIP.  25 

In  controversies  between  the  trustee  in  bankruptcy  and  adverse 
claimants,  the  requisite  diverse  citizenship  must  exist  between  the 
bankrupt  and  the  adverse  claimant,  without  regard  to  the  citizenship 
of  the  trustee.  Loveland  on  Bankruptcy,  Sec.  75.  Section  23a  of  the 
Bankrupt  Act  of  July  1,  1898,  30  Stat.  L.  544.  Bush  v.  Elliott,  202 
U.  S.  477,  50  L.  Ed.  1114;  Mayer  v.  Cohrs,  188  Fed.  443. 

The  citizenship  of  the  parties  at  the  time  of  the  commencement 
of  the  suit,  and  not  at  the  time  of  bankruptcy,  determines  jurisdiction 
in  cases  by  or  against  a  trustee  in  bankruptcy.  See  Emsheimer  v. 
New  Orleans,  186  U.  S.  33,  46  L.  Ed.  1042  and  cases  cited  in  the 
opinion;  Noyes  v.  Crawford,  133  Fed.  796. 

That  the  citizenship  of  the  trustee  in  bankruptcy  is- sufficient  for 
jurisdictional  purposes  where  defendant  makes  no  objection  that 
the  citizenship  of  the  bankrupt  is  not  averred,  and  proceeds  on  the 
merits,  see   McEldowney  v.   Card,  193  Fed.  475- 

The  court  has  jurisdiction,  under  the  Bankrupt  Act,  of  a  suit  by 
the  trustee  to  recover  assets,  without  regard  to  citizenship  or  amount 
involved,  where  the  money  of  the  bankrupt  was  used  by  a  third 
party  to  create  a  trust  for  the  bankrupt's  wife.  Milkman  v.  Arthe, 
213  Fed.  642. 

Proceedings  against  a  trustee  in  bankruptcy  by  adverse  claimants 
are  regularly  begun  in  the  court  of  bankruptcy  administering  the 
estate,  which  has  jurisdiction  without  regard  to  citizenship  or 
amount  involved.     Loveland  on  Bankruptcy,  Sec.  534. 


No.  25. 

A  Trustee  under  a  Will  against  an  Executor  and  Others. 

[Caption.] 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  residing  at  — 

in  said  state,  and  an  inhabitant  of  the, division  of  the  — 


district  of ,  (1)  as  trustee  under  the  last  will  and  testament 

of  L.  H.,  deceased,  plaintiff  in  this  suit,  for  M.  H.,  and  her 
children,  J.  H.,  M.  L.  and  her  husband,  H.  L.,  and  K.  H.,  who 
is  a  minor  under  the  age  of  twenty-one  years,  without  regular 
guardian,  and  who  sues  by  J.  H-.  her  next  friend,  all  of  whom 

are  residents  of  the  state  of  ,  complains  of  the  defendants, 

C  D.,  individually,  and  as  executor  of  the  last  will  and  testa- 
ment of  W.  .S.,  deceased,  and  E.  S.,  his  wife;  The  N.  Savings 
Bank,  a  corporation  created  and  existing  under  the  laws  of  the 

state  of ,  located  at ,  as  administrator  of  the  estate  of 

H.  G.,  deceased;  A.  W.  and  B.  W.,  partners  as  "W.  &  Sons," 
all  of  whom  are  residents  of  the  state  of ,  and  says : 


2G  JURISDICTION. 

That  L.  H.,  before  then  a  citizen  and  resident  of county, 

in  the  state  of  ,  departed  this  life  about  the  day  of 

,  19 — ,  having  before  then  made  his  last  will  and  testament, 

which  was  afterwards,  to-wit,  on  the day  of  ,   19 — , 

duly  admitted  to  probate  in  the  probate  court  of  county,  in 

the  state  of ,  and  remains  of  record  there,  and  that  the 

plaintiff  is  now  the  duly  appointed,  qualified  and  acting  trustee 
under  the  said  will. 

(1)  The  plaintiff  may  bring  the  suit  in  the  district  in  which  he 
resides  where  jurisdiction  depends  upon  diversity  of  citizenship. 
Sections  51,  52  and  53  of  the  Judicial  Code.  Reich  v.  Tennessee 
Copper  Co.,  209  Fed.  880. 

As  to  the  diversity  of  citizenship  requisite  to  jurisdiction,  see 
note  to  No.  3. 


No.  26. 

By  a  Few  Suing  for  Themselves  and  Others  Similarly 
Situated. 

\Caption.\ 

A.  B.,  who  is  a  citizen  of  the  state  of ,  residing  at  — 

in  said  state,  and  S.  R.,  who  is  a  citizen  of  the  state  of  — 


residing  at in  said  state,  suing  on  behalf  of  themselves  and 

all  other  creditors  \or  bondholders,  or  stockholders,  or  as  may  be] 
who  may  come  in  and  share  the  costs  of  the  litigation(l),  plain- 
tiffs in  this  suit,  complain  of  the  defendants  \co7ttinuc  from  this 
point  as  in  A^o.  2,  if  the  defendant  is  an  individual;  as  in  No-  4, 
if  the  defendant  is  a  firm;  as  in  No.  7,  if  the  defendant  is  a 
corporation;  as  in  No.  ^4,  if  the  defendant  is  an  alien;  or  as  may 
be,  according  to  the  character  of  the  defendant]. 

(1)  Suits  by  or  against  a  few  as  representatives  for  a  class.     In 

suits  by  or  against  one  or  more,  representing  a  class,  the  citizenship 
of  the  parties  to  the  record  when  the  suit  is  begun  determines 
jurisdiction.  Chicago  v.  Mills,  204  U.  S.  321,  51  L.  Ed.  504;  Stewart  v. 
Bonham,  115  U.  S.  61,  64,  29  L.  Ed.  329;  International  Trust  Co.  v. 
Townsend,  etc.  Co.  (6th  Cir.),  95  Fed.  850,  854,  37  C.  C  A.  396;  Eraser 
V.  Cole  •(7th  Cir.),  214  Fed.  556,  131  C.  C.  A.  102. 

Other  persons  similarly  situated  are  not  indispensable,  although 
they  may  be  proper  or  necessary  parties  to  the  suit.  Section  50, 
Judicial  Code,  bringing  forward  R.  S.  Sectioii  737.  Equity  rules  38 
and   39.     Rogers  v.    Penobscot   Mining  Co.    (8th  Cir.),    154   Fed.  606, 


ALLEGATIONS  OF   CITIZENSHIP,  27 

615,  616,  83  C.  C.  A.  288;  Sioux  City  Terminal,  etc.  Co.  v.  Trust 
Co.  (8th  Cir.),  82  Fed.  124,  126,  27  C.  C  A.  73;  Hotel  Co.  v.  Wade, 
97  U.  S.  13,  20,  21,  24  L.  Ed.  917;  Stewart  v.  Dunham,  115  U.  S.  61, 
29  L.  Ed.  329. 

In  West  V.  Randall,  No.  17424  Fed.  Cas.,  2  Mason,  181,  Mr.  Justice 
Story  considers  the  reasons  for  representative  suits  at  some  length. 

The  jurisdiction,  once  acquired,  between  the  original  parties,  is 
not  ousted  by  bringing  in,  by  amendment  or  intervention,  proper  or 
necessary  but  not  indispensable  parties.  Stewart  v.  Dunham,  115  U. 
S.  61,  29  L.  Ed.  129;  Chicago  v.  Mills,  204  U.  S.  321,  51  L.  Ed.  504; 
Belmont  Nail  Co.  v.  Columbia  Iron  &  Steel  Co.,  46  Fed.  336;  Osborne 
&  Co.  V.  Barge,  30  Fed.  805;  Society  of  Shakers  v.  Watson  (6th  Cir.), 
68  Fed.  730,  15  C.  C.  A.  632;  Eraser  v.  Cole  (7th  Cir.),  214  Fed.  556, 
131  C.  C.  A.  102. 

Among  this  class  of  cases  are  the  common  suits  of  creditors, 
suing  on  behalf  of  the  rest  of  the  stockholders  of  a  corporation,  or 
seeking  an  account  of  the  estate  of  their  debtor  to  obtain  payments 
of  their  demands.  Stewart  v.  Dunham,  115  U.  S.  61,  29  L.  Ed.  329; 
Putnam  v.  Timothy  Co.,  79  Fed.  454;  Alsop  v.  Con  wall  (6th  Cir.). 
188  Fed.  568,  576,  110  C.  C.  A.  366. 

Suits  by  a  bondholder,  on  behalf  of  himself  and  others  similarly 
situated,  to  enforce  the  mortgage  and  obtain  payment  of  their  claims, 
when  the  trustee  refuses  to  sue.  Hotel  Co.  v.  Wade,  97  U.  S.  13, 
24  L.  Ed.  917;  Jackson  &  Sharp  Co.  v.  Burlington,  etc.  Ry.  Co.,  29 
Fed.  474;  Coann  v.  Atlanta  Cotton  Factory  Co.,  14  Fed.  4.  But  see 
Mangels  v.  Donau  Brewing  Co.,  53  Fed.  513. 

Legatees,  seeking  relief  and  an  accounting  against  executors,  may 
sue  in  behalf  of  themselves  and  all  other  interested  persons,  when 
placed  in  the  same  predicament  as  creditors.  Brown  v.  Rickett,  3 
Johns.  Chan.  553;  Eraser  v.  Cole  (7th  Cir.),  214  Fed.  556,  131  C.  C. 
A.  102. 

So  also  are  suits  by  a  stockholder  in  a  corporation,  on  behalf  of 
himself  and  other  stockholders,  for  the  protection  of  a  right  which 
may  properly  be  asserted  by  the  corporation,  and  the  directors  refuse 
to  act.  Equity  Rule  27  (former  Rule  94).  Hawes  v.  Oakland,  104 
U.  S.  450,  26  L.  Ed.  827;  Chicago  v.  Mills,  204  U.  S-  321,  51  L.  Ed. 
504;  Doctor  v.  Harrington,  196  U.  S.  579,  49  L.  Ed.  606;  Dodge  v. 
Woolsey,  18  How.  331,  15  L.  Ed.  401;  Delaware  &  Hudson  Co.  v. 
Albany  &  S.  R.  Co.,  213  U.  S.  435,  53  L.  Ed.  862;  Ex  parte  Young,  209 
U.  S.  123,  52  L.  Ed.  714. 

As  to  the  efifect  of  failure  to  comply  with  Equity  Rule  94  (now 
Equity  Rule  27),  see  Detroit  v.  Dean,  106  U.  S.  537,  21  L.  Ed.  300; 
Delaware  &  Hudson  Co.  v.  Albany  &  S.  R.  Co.,  213  U.  S.  435,  53 
L.  Ed.  862. 

Where  in  such  suit  the  receiver  is  erroneously  made  a  party  defend- 
ant, the  court  may  realign  to  create  diversity.  Kelly  v.  Dolan,  218 
Fed.  966. 


28  JURISDICTION. 

Another  class  of  cases  is,  where  a  few  persons  of  a  voluntary 
association,  or  an  unincorporated  body,  have  been  permitted  to  sue 
or  defend  in  behalf  of  the  whole.  Sharpe  v.  Bonham,  224  U.  S.  241, 
56  L.  Ed.  747;  Helm  v.  Zarecor,  222  U.  S.  32,  56  L.  Ed.  11;  Society 
of  Shakers  v.  Watson  (6th  Cir.),  68  Fed.  730,  15  C.  C.  A.  632;  Oxley 
Stave  Co.  v.  Coopers'  International  Union,  72  Fed.  695,  affirmed 
(8th  Cir.),  83  Fed.  912,  28  C.  C.  A.  99;  American  Steel  &  Wire  Co.  v. 
Wire  Drawers'  Union,  90  Fed.  598;  Evenson  v.  Spaulding  (9th  Cir.), 
150  Fed.  517,  522,  82  C.  C.  A.  263;  United  States  v.  Coal  Dealers 
Assn.,  85  Fed.  252. 

This  class  includes  controversies  involving  religious  societies. 
Sharpe  v.  Bonham,  224  U.  S.  241,  56  L.  Ed.  747;  Helm  v.  Zarecor,  222 
U.  S.  32,  56  L.  Ed.  11. 

Social  communities.  Society  of  Shakers  v.  Watson  (6th  Cir.), 
68  Fed.  730,  15  C.  C.  A.  632. 

Labor  unions.  Oxley  Stave  Co.  v.  Coopers'  International  Union, 
72  Fed.  698,  affirmed  (8th  Cir.),  83  Fed.  912,  28  C.  C.  A.  99;  American 
Steel  &  Wire  Co.  v.  Wire  Drawers'  Union,  90  Fed.  598;  Kolley  v. 
Robinson  (8th  Cir.),  187  Fed.  415,  109  C.  C.  A.  247;  Evenson  v. 
Spaulding  (9th  Cir.),  150  Fed.  517,  522,  82  C.  C.  A.  263;  The  Carpenter 
Case,  180  Fed.  896;  Barnes  &  Co.  v.  Berry,  156  Fed.  72,  affirmed  (6th 
Cir.),  169  Fed.  225,  94  C.  C.  A.  501. 


No.  27. 

By  a  Representative  for  a  Joint  Stock  Company  (1). 

\Captlon.\ 

A.  B.,  who  is  a  citizen  of  the  state  of ,  residing  at  

in  said  state,  complains  of  the  defendant  [continue  from  this  point 
as  in  .No-  2,  if  the  defendant  is  an  individual ;  as  in  No.  4,  if  the 
defendant  is  a  firm;  as  in  No.  y,  if  the  defendant  is  a  corporation; 
as  in  No.  ^4,  if  the  defendant  is  an  alien;  or  as  may  he,  according 
to  the  character  of  the  defendant,  and  continue  as  follozvs]  : 
and  says : 

That  he  is  the  president  and  a  shareholder  of  The  A.  Express 
Company,  which  is  a  co-partnership  organized  many  years  ago 

as  a  joint  stock  association  under  the  laws  of  the  state  of  , 

and  ever  since  existing  and  doing  business  as  such.  Said  com- 
pany consists  of   about   partners   or   shareholders   owning 

shares,  all  of  whom  have  a  joint  ownership  and  interest  in 

the  cause  of  action  hereinafter  set  forth.  By  the  laws  of  the 
state  of ,  under  which  said  company  was  organized  and  now 


ALLEGATIONS  OF   CITIZENSHIP.  29 

exists,  it  is  authorized  and  empowered  to  sue  and  be  sued  in  the 
name  of  the  president,  who  is  the  plaintiff  in  this  suit,  and  as 
such  president  and  shareholder  in  said  company  he  brings  this 
suit  in  behalf  of  said  association  and  all  the  shareholders  thereof, 
who  are  too  numerous  to  be  joined  as  parties  hereto. 

(1)  In  suits  brought  by  or  against  a  joint  stock  company,  the 
citizenship  of  all  the  individual  members  composing  it,  as  in  a 
partnership,  ordinarily  determines  the  jurisdiction  of  the  district 
court,  when  it  is  based  upon  diverse  citizenship.  Great  Southern 
Fireproof  Hotel  Co.  v.  Jones,  177  U.  S.  449,  44  L.  Ed.  842;  Chapman 
V.  Barney,  129  U.  S.  677,  682,  32  L.  Ed.  800;  Rife  v.  Lumber  Under-  • 
writers  (6th  Cir.),  204  Fed.  32,  122  C.  C.  A.  346. 

Where  the  shareholders  of  a  joint  stock  company  are  numerous, 
a  suit  may  be  brought  by  or  against  the  company  in  the  name  of 
an  officer  whose  citizenship  alone  marks  federal  jurisdiction.  Johnson 
v.  St.  Louis  (8th  Cir.),  172  Fed.  31.  96  C.  C.  A.  617;  Boatner  v.  Ameri- 
can Express  Co.,  122  Fed.  714,  718;  Whitman  v.  Hubbell,  30  Fed.  81; 
Baltimore  &  O.  R.  Co.  v.  Adams  Express  Co.,  22  Fed.  404,  407-8; 
Maltz  V.  American  Express  Co.,  No.  9002  Fed.  Cas.,  1  Flip.  611.  See 
also  Meux  v.  Maltby,  2  Swanst.  277. 

A  joint  stock  company  can  not  sue  or  be  sued  in  a  federal  court 
in  the  name  of  an  officer,  by  virtue  of  the  state  law  authorizing  this 
to  be  done  in  state  courts.  Chapman  v.  Barney,  129  U.  S.  677,  32 
L.  Ed.  800;  Adams  v.  May,  27  Fed.  907. 


No.  28. 

Against  a  Few  as  Representatives  of  a  Community  or 
Society  (1). 

[Caption.] 

[In  a  suit  against  an  unincorporated  society  or  community, 
proceed  to  the  zvords  "complains  of  the  defendant"  as  in  No-  2, 
if  the  plaintiff  is  an  indiz'idual ;  as  in  No.  5,  if  the  plaintiff  is  a 
firm;  as  in  No.  y,  if  the  plaintiff  is  a  corporation;  or  as  may  be, 
according  to  the  character  of  the  plaintiff,  and  continue  as  fol- 
loivs'\  :  complains  of  the  defendants,  the  .Society  of  Shakers  at 
Pleasant  Hill,  Kentucky,  that  being  the  name  by  which  the  com- 
munity of  people  commonly  called  Shakers,  located  in  Mercer 
county,  Kentucky,  is  commonly  known,  and  Stephen  Boisseau 
and  James  Shelton  and  Napoleon  Brown  as  trustees  or  agents  of 
the  said  Society  of  Shakers  at  Pleasant  Hill,  Kentucky,  and  as 
members  of  said  society,  all  of  said  defendants  being  citizens 
of  the  state  of  Kentucky. 


30  JURISDICTION. 

And  plaintiff  says  that  the  said  community  of  people  commonly 
called  Shakers,  living  together  and  having  their  property  in  com- 
mon, in  the  county  of  Mercer  in  the  state  of  Kentucky,  are  com- 
monly known  by  the  name  or  description  of  the  "Society  of 
Shakers  at  Pleasant  Hill,  Kentucky,"  and  that  the  said  Stephen 
Boisseau  and  James  Shelton  and  Napoleon  Brown  are  members 
of  said  community,  and  are  its  duly  appointed  and  authorized 
trustees  or  agents,  selected  in  pursuance  of  the  articles  of  cove- 
nant of  said  community  hereinafter  referred  to  and  exhibited, 
«  and  as  such  hold  all  the  property  of  the  society.  That  said  com- 
munity has  a  very  large  membership  consisting  of  more  than  one 
hundred  people  and  the  number  is  constantly  changing.  That 
said  community  subscribe  to  and  recognize  as  binding  upon  it 
and  the  members  composing  said  community,  certain  articles  of 
covenant,  a  duly  certified  copy  of  which  articles  is  herewith 
exhibited  as  "Exhibit  A,"  and  said  articles  of  covenant  are  prayed 
to  be  read  with  this  bill.  The  said  articles  of  covenant  are  duly 
recorded  in  the  clerk's  office  of  the  county  court  of  Mercer  county, 
Kentucky,  as  required  by  said  covenant. 

That  said  articles  state  that  it  is  "fit  and  proper  that  certain 
individuals  should  be  entrusted  with  the  care  of  the  temporal 
interest  of  the  church  as  trustees  or  agents,"  and  then  it  is  therein 
covenanted  that  the  said  trustees  or  agents  and  their  successors 
shall  be  duly  invested  with  the  said  office  of  trustees  or  agents, 
and  "empowered  to  exercise  all  the  duties  thereof,"  and  "that  it 
shall  be  the  duty  of  the  trustees  or  agents  to  take  the  general 
charge  and  oversight  of  all  and  singular  the  property,  estate  and 
interest  dedicated,  devoted  and  given  up  as  aforesaid  to  the  joint 
interest  of  the  church,  with  all  gifts,  grants  and  donations  that 
may  at  any  time  be  given  or  devoted  for  the  benefit  of  the  church 
or  for  the  relief  of  the  poor  or  any  such  charitable  use  or  pur- 
pose, and  the  said  joint  interest,  estate,  gifts,  grants  and  dona- 
tions shall  be  held  by  them  in  the  capacity  of  trustees  or  agents 
and  shall  be  and  remain  forever  inviolably  under  the  care  and 
oversight  and  at  the  disposal  of  the  trustees  and  agentship  of  the 
church  in  a  continual  line  of  succession,"  and 

That  said  articles  of  covenant  contain  this  further  provision  or 
covenant,  to-wit :  "And  we  do  by  these  presents  covenant,  promise 
and  agree  that  all  the  transactions  of  the  trustees  or  agents  in 


AT.LEGATIONS   OF    CITIZENSHIP.  31 

the  use  or  disposal  of  the  joint  interest  of  the  church  shall  be  for 
the  mutual  benefit  of  the  church,  and  in  behalf  of  the  whole 
body  and  to  no  personal  end  or  purpose  whatever,  but  the  trustees 
or  agents  shall  be  at  liberty  in  union  with  the  body  to  make,  pre- 
sent and  bestow  deeds  of  charity  upon  such  as  they  may  con- 
sider the  proper  objects,  that  are  without;  and  when  by  death  or 
other  means  any  trustee  or  agent  shall  cease  to  act  in  his  office 
as  aforesaid,  then  all  and  singular  the  power  invested  in  or  duties 
incumbent  upon  him  shall  be  transferred  and  devolved  upon  his 
successor,  who  shall  be  appointed  to  fill  his  place  in  said  office 
and  trust,  so  that  each  individual  appointed  to  the  office  of 
trustee  or  agent  of  the  church  shall  be  vested  with  the  power 
and  authority  of  managing  and  disposing  of  the  property  and 
interest  of  the  church  as  aforesaid,  and  of  making  all  lawful 
defense  for  the  security  and  protection  of  the  joint  interest  and 
privileges  of  the  church,  and  all  the  transactions  of  such  mem- 
bers shall  be  valid  so  long  as  they  act  in  the  official  capacity  of 
trustees  or  agents  in  union  with  the  body  according  to  the  tenor 
of  the  covenant,  and  no  longer." 

That  said  articles  contain  this  further  provision  or  covenant, 
to-wit:  "And  we  further  covenant  and  agree  that  it  shall  be  the 
duty  of  the  trustees  to  keep  or  cause  to  be  kept  in  a  book  or 
books  provided  for  that  purpose  a  true  copy  of  this  covenant, 
together  with  all  other  records  or  matters  of  a  public  nature  that 
may  be  necessary  for  the  information  and  satisfaction  of  all  con- 
cerned, and  for  the  security  of  the  joint  interest  of  the  church 
committed  to  their  care,  and  further  that  the  trustees  shall  make 
application  to  the  proper  authority  for  the  covenant  to  be  duly 
recorded  in  the  county  office  of  this  county,  together  with  the 
names  of  all  the  subscribers  who  previously  shall  have  sub- 
scribed to  it,  and  in  all  deeds,  wills,  grants,  etc.  which  may  there- 
after be  given  or  conveyed  to  the  trustees  or  agents  aforesaid 
for  and  in  behalf  of  the  joint  body  or  church,  express  reference 
shall  be  had  to  the  same,  specifying  the  date  or  time  when  it  was 
subscribed  or  first  begun  to  be  subscribed." 

That  said  articles  of  covenant  contain  this  further  provision  or 
covenant,  to-wit :  "We  do  freely  and  cordially  covenant,  promise 
and  agree  together  for  ourselves  that  we  shall  never  hereafter 
make  any  account  of  any  property,  labor  or  service  devoted  by  us 


32  JURISDICTION. 

to  the  purpose  aforesaid,  or  bring  any  charge  of  debt  or  damages 
or  hold  any  demand  whatever  against  the  church  or  community 
or  any  member  thereof,  on  account  of  either  property  or  service 
given,  rendered  or  consecrated  to  the  aforesaid  sacred  and  char- 
itable uses." 

(1)  The  foregoing  allegation  is  taken  from  the  record  in  Society 
of  Shakers  v.  Watson  (6th  Cir.),  68  Fed.  730,  15  C  C.  A.  632 

As  to  suits  generally  by  or  against  one  or  more  representing  a 
class,  see  note  to  No.  26. 


No.  29. 

Against  a  Few  as  Representatives  of  a  Labor  Union  (1). 

[Caption.] 

[In  a  suit  against  a  labor  union,  proceed  to  the  zvords  "com- 
plains of  the  defendant"  as  in  No.  2,  if  the  plaintiff  is  an  indi- 
vidual; as  in  No.  5,  if  the  plaintiff  is  a  firm;  as  in  No.  y,  if  the 
plaintiff  is  a  corporation;  or  as  may  be,  according  to  the  char- 
acter of  the  plaintiff,  and  continue  as  follows]  :  complains  of  the 
defendants,  The  International  Printers'  Union,  C  D.  and  G.  H., 

both  of  whom  are  citizens  of  the  state  of  ,  residing  at 

in  said  state,  and  inhabitants  of  the  division  of  the  

district  of  aforesaid,  and  says: 

That  The  International  Printers'  Union  (hereinafter  called  the 
union)  is  a  voluntary  association  composed  of  persons  employed 
in  the  printing  and  publishing  business  in  the  United  States, 
whose  duties  involve  the  operation  and  care  of  printing  presses 
and  appliances  and  who  are  employed  by  various  firms  and  indi- 
viduals requiring  their  services;  that  said  association  is  com- 
monly known  as  a  labor  union ;  that  it  has  a  constitution ;  that 

its  principal  office  is  located  at  ,  in  the  state  of  ;  that 

the  defendant,  C.  D.,  is  the  president  of  the  said  union  and  the 
defendant,  G.  H.,  is  its  secretary-treasurer;  that  said  C.  D.  is 
the  executive  head  of  said  union  and  that  the  business  and 
affairs  of  said  union  are  transacted  at  its  said  principal  office  at 

,  in  the  state  of ,  by  the  said  C.  D.  and  G.  H. ;  that  its 

other  officers  are  W.  L.,  first  vice  president;  J.  G.,  second  vice 
president,  and  P.  J-,  third  vice  president ;  that  the  said  associa- 
tion has  a  board  of  directors,  the  present  personnel  of  which  is 


ALLEGATIONS  OF   CITIZENSHIP.  33 

made  up  of  the  officers  above  named  and  which  has  its  principal 

place  of  business  at  the  office  of  the  said  union  at  .  in  the 

state  of ;  that  the  said  union  is  national  in  scope ;  that  it  is 

made  up  of  branches  or  subordinate  unions,  called  local  unions, 
organized  in  various  cities  and  places  in  the  United  States ;  which 
have  local  officers  and  agents  elected  by  the  members  of  said 
local  unions,  the  names  of  which  officers  and  agents  are  unknown 
to  plaintiff;  that  there  is  a  large  number  of  such  local  unions 
affiliated  with  and  a  part  of  said  union,  the  number  of  which 
local  unions  is  unknown  to  plaintiff,  but  which  exceeds  one  hun- 
dred ;  that  the  number  of  officers  and  agents  of  said  local  unions 
is  unknown  to  your  orators,  but  comprises  several  hundred ;  that 
the  total  membership  of  said  union  and  its  locals  is  unknown  to 
plaintiff,  but  comprises  several  thousands;  that  the  said  local 
unions  from  time  to  time  elect  delegates  to  general  conventions 
of  said  union  held  at  stated  times  and  places,  and  said  delegates 
are  the  authorized  representatives  of  said  local  unions  to  elect 
the  officers  of  said  union  and  to  transact  such  other  business  of 
the  union  as  may  come  before  said  conventions,  and  said  delegates 
have  power  and  authority  to  enter  into  contracts  or  authorize 
their  agents  or  committees  to  enter  into  contracts  in  behalf  of 
the  members  of  said  union  and  its  locals,  including  contracts 
with  said  plaintiff,  specifying  the  terms  and  conditions  of  their 
employment. 

(1)  Taken  from  the  record  in  Barnes  &  Co.  v.  Berry  (6th  Cir.), 
169  Fed.  225,  94  C.  C  A.  501. 

As  to  suits  against  labor  unions  generally,  see  Oxley  Stave  Co.  v. 
Coopers'  International  Union,  72  Fed.  698,  affirmed  (8th  Cir.),  83 
Fed.  912,  28  C.  C.  A.  99;  American  Steel  &  Wire  Co.  v.  Wire  Drawers' 
Union,  90  Fed.  598;  Kolley  v.  Robinson  (8th  Cir.),  187  Fed.  415,  109 
C.  C.  A.  247;  Evenson  v.  Spaulding  (9th  Cir.),  150  Fed.  517,  82  C.  C.  A. 
263;  The  Carpenter  Case,  180  Fed.  896;  Barnes  &  Co.  v.  Berry,  156 
Fed.  12,  affirmed  (6th  Cir.),  169  Fed.  225,  92  C.  C.  A.  501. 


No.  30. 

By  a  National  Bank. 
\Captioni\ 

The  A.  B.  National  Bank,  a  national  banking  association  organ- 
ized and  existing  as  such  under  the  laws  of  the  United  States, 


34  JURISDICTION. 

located  at ,  in  the  state  of ,  and  a  citizen  of  said  state(l), 

plaintiff  in  this  suit,  complains  of  the  defendant  [continue  from 
this  point  as  in  A^o.  2,  if  the  defendant  is  an  individual;  as  in 
No.  4  if  the  defendant  is  a  firm;  as  in  No.  y,  if  the  defendant  is 
a  corporation;  or  as  may  he,  according  to  the  character  of  the 
defendant] . 

(1)  A  national  bank  is,  for  the  purposes  of  jurisdiction  of  the 
federal  courts  in  suits  by  or  against  it,  admitted  to  be  a  citizen  of 
the  state  in  which  it  is  located.  Section  24,  paragraph  16  of  the 
Judicial  Code,  bringing  forward  Section  4  of  the  Act  of  August  13, 
1888,  25  Stat.  L.  433;  Continental  National  Bank  v.  Buford,  191  U-  S. 
119,  46  L.  Ed.  119;  Petri  v.  Commercial  National  Bank,  142  U.  S.  644, 

35  L,  Ed.  1144;  Whittemore  v.  Amoskeag  National  Bank,  134  U-  S. 
527,  33  L.  Ed.  1002;  Danahy  v.   Bank,  64  Fed.  148. 

A  national  bank  located  in  a  territory  or  the  District  of  Columbia 
can  not  sue  or  be  sued  in  a  federal  court  on  the  ground  of  diverse 
citizenship.     American  National   Bank  v.  Tappan,  174  Fed.  431. 

A  national  bank  may  sue  on  the  ground  of  a  federal  question  being 
involved  without  regard  to  citizenship.  Cummings  v.  Merchants 
National  Bank,  101  U.  S.  153,  25  L.  Ed.  903. 

Cases  for  winding  up  the  affairs  of  a  national  bank  do  not  depend 
on  citizenship.  Section  24,  paragraph  16  of  the  Judicial  Code;  Inter- 
national Trust  Co.  V.  Weeks,  203  U.  S.  364,  51  L.  Ed.  204;  In  re 
Chetwood,  165  U.  S.  443,  459,  41  L.  Ed.  782;  Guarantee  Co.  v.  Hanway. 
104  Fed.  369. 


No.  31. 

Against  a  National  Bank. 

[Caption.] 

[In  a  suit  against  a  national  hank,  proceed  to  the  zuords  "com- 
plains of  the  defendant''  as  in  A^o.  2,  if  the  plaintiff  is  an  indi- 
vidual; as  in  No.  5,  ;/  the  plaintiff  is  a  firm;  as  in  No.  7,  if  the 
plaintiff  is  a  corporation ;  or  as  may  he,  according  to  the  char- 
acter of  the  plaintiff,  a  fid  continue  as  follows]  :  complains  of  the 
defendant,  The  C.  D.  National  Bank,  a  national  banking  asso- 
ciation organized  and  existing  as  such  under  the  laws  of  the 

United  States  and  located  at  ,  in  the  state  of  ,  and  an 

inhabitant  of  the  division  of  the  district  of  (1) 

aforesaid,  and  says: 

(1)  See  note  (1)  to  No.  30  and  note  (2)  to  No.  2. 


ALLEGATIONS  OF   CITIZENSHIP.  35 

No.  32. 
By  an  Assignee  of  a  Chose  in  Action  (1). 

[Caption.] 

A.  B,,  who  is  a  citizen  of  the  state  of  ,  residing  at 

in  said  state  [if  the  plaintiff  is  a  firm  make  the  averment  as  in 
No-  5;  if  the  plaintiff  is  a  corporation,  as  in  No.  7;  or  as  may  be, 
according  to  the  character  of  the  plaintiff,  and  continue  as  fol- 
lows] :  complains  of  the  defendant  [continue  from  this  point  as 
in  No.  2,  if  the  defendant  is  an  individual;  as  in  No.  4,  if  the 
defendant  is  a  firm;  as  in  No.  y,  if  the  defendant  is  a  corporation; 
or  as  may  be,  according  to  the  character  of  the  defendant,  and 
continue  as  follows]  : 

That  the  defendant  C.  D.,  by  a  certain  writing  dated  

,  19 — ,  which  the  said  defendant  signed  and  dehvered  to 


S.  W.,  who  is  a  citizen  of  the  state  of ,  residing  at in 

said  state,  which  said  writing,  with  the  endorsements  of  the  said 
S.  W.  thereon,  is  filed  herewith  and  marked  "Exhibit  A,"  prom- 
ised to  pay  to  the  said  S.  W.  $ , days  after  the  date  of 

said  writing;  that  the  said  S.  W.,  with  his  written  endorsement 
on  said  note,  assigned  and  delivered  it  to  this  plaintiff  before  its 
maturity  and  for  full  and  valuable  consideration  paid  by  this 
plaintiff  therefor. 

(1)  In  a  suit  by  an  assignee  of  a  promissory  note,  or  other  chose 
in  action,  the  plaintiflf  must  show  affirmatively  that  both  he  and  the 
original  assignor  were  citizens  of  a  state  or  states  other  than  the 
state  of  which  the  defendant  is  a  citizen.  Section  24  of  the  Judicial 
Code;  New  Orleans  v.  Benjamin.  153  U.  S.  411,  435,  38  L.  Ed.  764; 
Parker  v.  Ormsby,  141  U.  S.  81,  35  L.  Ed.  654;  Brock  v.  Northwestern 
Fuel  Co.,  130  U.  S.  341,  32  L.  Ed.  905;  Benjamin  v.  New  Orleans 
(5th  Cir.),  74  Fed.  417,  20  C.  C.  A.  591,  affirming  71  Fed.  758;  Gorman- 
Wright  Co.  V.  Wright  (4th  Cir.),  134  Fed..  363,  67  C.  C  A.  345;  Utah- 
Nevada  Co.  V.  DeLamar  (9th  Cir.),  133  Fed.  113,  66  C.  C.  A-  179; 
United  States  Nat.  Bank  v.  McNair,  56  Fed.  323;  Houck  and  Wife 
V.  Bank,  242  Fed.  881,  155  C  C.  A.  469;  Springstead  v.  Crawfordsville 
State  Bank,  231  U.  S.  541,  58  L.  Ed.  354. 

In  Benjamin  v.  New  Orleans  (5th  Cir.),  74  Fed.  417,  20  C.  C  A. 
591,  it  was  held  insufficient  to  aver  that  the  assignors  were  citizens, 
respectively,  of  states  other  than  the  state  of  Louisiana,  and  com- 
petent, as  such  citizens,  to  maintain  a  suit  in  this  court. 


36  JURISDICTION. 

The  citizenship  of  the  original  assignor  or  payee  is  immaterial  in 
suits  on  foreign  bills  of  exchange.  Section  24  of  the  Judicial  Code; 
Buckner  v.  Finley,  2  Pet.  586,  7  L.  Ed.  528. 

The  citizenship  of  the  assignor  or  payee  is  immaterial  in  suits 
on  choses  in  action,  payable  to  bearer  and  made  by  a  corporation. 
Section  24  of  the  Judicial  Code;  New  Orleans  v.  Quinlan,  173  U.  S. 
191,  43  L.  Ed.  664;  Holmes  v.  Goldsmith,  147  U.  S.  150,  57  L.  Ed. 
118;  Falk  v.  Moebs,  127  U.  S.  597,  30  L.  Ed.  266;  Blair  v.  Chicago,  201 
U.  S.  400,  50  L.  Ed.  801;  Lake  County  v.  Dudley,  173  U.  S.  243,  43 
L.  Ed.  684. 

Jurisdiction  of  suits  by  assignees  of  choses  in  action.  Section  24 
of  the  Judicial  Code  bringing  forward  Section  1  of  the  Act  of  August 
13,  1888,  25  Stat.  L.  433,  prohibits  suits  in  the  district  courts  to  recover 
upon  promissory  notes,  or  other  choses  in  action  brought  in  favor 
of  assignees,  except  in  three  classes  of  cases,  namely:  First.  Suits 
upon  foreign  bills  of  exchange.  Second.  Suits  that  might  have  been 
prosecuted  in  said  court  to  recover  upon  such  notes  or  choses  in 
action,  if  no  assignment  had  been  made.  Third.  Suits  upon  choses 
in  action,  payable  to  bearer  and  made  by  a  corporation.  Section  24 
of  the  Judicial  Code;  New  Orleans  v.  Quinlan,  173  U.  S.  191,  43  L. 
Ed.  664;  Newgass  v.  New  Orleans,  33  Fed.  196;  Wilson  v.  Knox 
County,  43  Fed.  481. 

A  similar  provision  was  contained  in  Section  11  of  the  Judiciary 
Act  of  1789  and  carried  forward  into  Section  629  of  the  Revised 
Statutes.  It  appears  in  the  Act  of  March  3,  1875  (18  Stat.  L.  470)  in 
somewhat  different  phraseology,  and  the  restrictions  as  to  suits  on 
promissory  notes  was  removed,  but  it  was  restored  by  the  Act  of 
1888,  and  brought  forward  in  Section  24  of  the  Judicial  Code. 

For  the  history  of  the  legislation  on  this  subject,  see  New  Orleans 
V.  Quinlan,  173  U.  S.  191,  43  L.  Ed.  664. 

First.  Foreign  bills  of  exchange  include  bills  drawn  in  one  state 
on  persons  in  another,  and  bank  checks.  See  Buckner  v.  Finley,  2 
Pet.  586,  7  L.  Ed.  528;  Bull  v.  Bank  of  Kasson,  123  U.  S.  105,  31  L. 
Ed.  97.  See  also  observation  by  Mr.  Justice  Bradley  in  Knicker- 
bocker Life  Ins.  Co.  v.  Pendleton,  112  U.  S.  696,  706,  28  L.  Ed.  866. 

Second.  With  the  exceptions  mentioned  above,  in  suits  by  an 
assignee  of  a  chose  in  action,  jurisdiction  exists  only  if  the  plaintiff 
and  the  original  assignor  or  payee  are  citizens  of  a  different  state  or 
states  from  the  defendant.  Parker  v.  Ormsby,  141  U.  S.  881,  35  L. 
Ed.  654;  Brock  v.  Northwestern  Fuel  Co.,  130  U.  S.  341,  32  L.  Ed.  905; 
New  Orleans  v.  Benjamin,  153  U.  S.  411,  435,  38  L.  Ed.  764. 

As  to  what  the  term  "assignee"  covers,  see  Plant  Investment  Co. 
V.  Jacksonville  R.  Co.,  152  U.  S.  71,  38  L.  Ed.  358;  Corwin  v.  Black 
Hawk  County,  105  U.  S.  659,  665-6,  26  L.  Ed.  1128;  Sere  v.  Pitot,  6 
Cranch.  332,  335,  3  L.  Ed.  240;  Brock  v.  Northwestern  Fuel  Co.,  130 
U.  S.  341,  32  L.  Ed.  905;  Glass  v.  Concordia  Parish  Police  Jury,  176 
U.  S.  207.  44  L.  Ed.  436. 


ALLEGATIONS  OF  CITIZENSHIP.  37 

Jurisdiction  depends  on  the  citizenship  of  the  parties  at  the  time 
the  suit  is  begun  and  not  when  the  assignment  is  made.  Emsheimer 
V.  New  Orleans,  186  U.  S.  33.  46  L.  Ed.  1042. 

The  citizenship  of  intermediate  assignees,  holders  or  owners  is 
immaterial.  Farr  v.  Hobe-Peters  Land  Co.  (7th  Cir.),  188  Fed.  10, 
16,  110  C.  C.  A.  160;  Portage  City  Water  Works  v.  Portage,  102  Fed. 
769;  Milledollar  v.  Bell,  No.  9549  Fed.  Cas.,  2  Wall.  Jr.  334  (opinion 
by  Mr.  Justice  Grier);  Moore  Bros.  Glass  Co.  v.  Drevet  Mfg.  Co., 
164  Fed.  737;  Wilson  v.  Fisher,  No.  17803  Fed.  Cas.,  Baldw.  133; 
Lipschitz  V.  Napa  Fruit  Co.,  223  Fed.  698,  139  C  C.  A.  228. 

Jurisdiction  is  not  defeated  because  the  assignment  was  made 
to  enable  the  purchaser  to  sue  in  a  district  court,  if  the  transfer 
was  absolute  and  for  good  consideration.  Blair  v.  Chicago,  201  U.  S. 
400,  448,  50  L.  Ed.  801;  Dickerman  v.  Northern  Trust  Co.,  176  U.  S. 
181,  191,  44  L.  Ed.  423;  Marine  &  R.  etc.  Mfg.  Co.  v.  Bradley,  105*  U- 
S.  175,  26  L.  Ed.  1034;  New  Providence  v.  Halsey,  117  U.  S.  336,  29 
L.  Ed.  904. 

If  the  transfer  was  not  made  in  good  faith,  the  court  has  no 
jurisdiction.  Waite  v.  Santa  Cruz,  184  U.  S.  302,  325,  46  L.  Ed.  552; 
Lake  County  v.  Dudley,  173  U.  S.  243,  252,  43  L.  Ed.  684;  Williams  v. 
X  Ottawa,  104  U.  S-  209,  26  L.  Ed.  719. 

If  payee  is  merely  an  agent  and  authorized  to  transfer  promissory 
notes,  having  no  beneficial  interest  therein,  nor  right  of  action  thereon, 
his  citizenship  is  immaterial.  Baltimore  Trust  Co.  v.  Screven  County, 
238  Fed.  834. 

Third.  In  suits  by  holders  of  instruments  payable  to  bearer  and 
made  by  a  corporation,  it  is  sufficient  if  the  requisite  diverse  citizen- 
ship exists  between  them,  without  regard  to  the  citizenship  of  the 
original,  or  any  intermediate  holder  of  it.  Section  24  of  the  Judicial 
Code;  New  Orleans  v.  Quinlan,  173  U.  S-  191,  43  L.  Ed.  664;  Lake 
County  v.  Dudley,  173  U.  S.  243,  43  L.  Ed.  684;  Blair  v.  Chicago, 
201  U.  S.  400,  447,  50  L.  Ed.  801;  Loeb  v.  Columbia  Township,  179 
U.  S.  472,  485,  45  L.  Ed.  280;  Waite  v.  Santa  Cruz,  184  U.  S.  302,  324, 
46  L.  Ed.  552;  Rollins  v.  Chaflfee  County,  34  Fed.  91;  Board  of  Com- 
missioners v.  Irvine  (8th  Cir.),  126  Fed.  689,  61  C.  C.  A.  607;  Citizens 
Sav.  Bank  v.  Newburyport  (1st  Cir.),  169  Fed.  766,  95  C.  C.  A.  232; 
Keene  Five  Cent  Sav.  Bank  v.  Lyon  County,  90  Fed.  523. 


No.  33. 

By  an  Alien. 

[Caption.] 

A.  B.,  of ,  who  is  a  subject  (1)  of  the  Emperor  [or  King, 

or  Queen,  or  as  may  be,  or  a  citizen  of  the  Republic]  (1)  of 
■ ,  plaintiff  in  this  suit,  complains  of  the  defendant  [continue 


38  JURISDICTION. 

from  this  point  as  in  No.  2,  if  the  defendant  is  an  individual; 
as  in  No.  4,  if  the  defendant  is  a  firm;  as  in  No.  7,  if  the  defend- 
ant is  a  corporation;  or  as  may  be,  according  to  the  character  of 
the  defendant]. (2) 

(1)  Where  federal  jurisdiction  depends  upon  the  controversy  being 
between  a  citizen  of  a  state  and  an  alien,  the  first  pleading  should 
aver  of  what  foreign  state  the  alien  is  a  subject  or  citizen.  Stuart  v. 
Easton,  156  U.  S.  46,  39  L.  Ed.  341;  B5rs  v.  Preston,  111  U.  S.  252,  28 
L.  Ed.  419;  Hennessy  v.  Richardson  Drug  Co.,  189  U.  S.  25,  47  L.  Ed. 
697;  Suravitz  v.  Pristasz  (3d  Cir.),  201  Fed.  335,  119  C.  C.  A.  573. 

It  is  also  necessary  to  aver  the  citizenship  of  the  American  citizen. 
Piquignot  v.  Pennsylvania  R.  Co.,  16  How.  104,  14  L.  Ed.  863;  Jack- 
son v.  Twentyman,  2  Pet.  136,  7  L.  Ed.  374. 

The  word  "subject"  properly  describes  a  person  owing  allegiance 
to  a  monarch.  Rondot  v.  Rogers  (6th  Cir.),  79  Fed.  676,  25  C.  C.  A. 
145,  and  "citizen"  properly  describes  a  member  of  a  republic. 
Hennessy  v.  Richardson  Drug  Co..  189  U.  S.  25,  47  L.  Ed.  697. 

It  is  not  necessary  to  allege  that  he  is  an  alien,  where  the  plead- 
ing properly  describes  a  subject  or  citizen  of  a  foreign  state.  Hennessy 
V.'  Richardson  Drug  Co.,  189  U.  S.  25,  34,  47  L.  Ed.  697. 

It  has  been  held  a  sufficient  description  of  an  alien  to  aver  that 
the  plaintiffs  "were  citizens  of  the  Republic  of  France."  Hennessy 
V.  Richardson  Drug  Co.,  189  U.  S.  25,  34,  47  L.  Ed.  697.  Or  that  the 
plaintiflF  is  "a  resident  of  Washington  and  a  citizen  of  Sweden." 
Nicholas  Lumber  Co.  v.  Franson,  203  U.  S.  278,  51  L.  Ed.  181.  Or 
that  the  plaintiff  is  "a  citizen  of  Ireland."  Mahoning  Valley  R.  Co. 
V.  O'Hara  (6th  Cir.),  1%  Fed.  945,  116  C.  C.  A.  495.  Or,  "is  a  subject 
and  citizen  of  Cuba."  Betancourt  v.  Mutual  Reserve  Fund  Life 
Assn.,  101  Fed.  305. 

It  has  been  held  an  insufficient  description  of  an  alien  that  the 
plaintiff  is  "a  citizen  of  London,  England."  Stuart  v.  Easton,  156 
U.  S.  42,  39  L.  Ed.  341.  Or,  that  the  plaintiff  is  "a  citizen  of  the 
British  Empire."  Von  Voight  v.  Michigan  Cent.  R.  Co.,  130  Fed. 
398.  Or,  that  the  plaintiff  is  a  "resident  of  Ontario,  Canada,  and  a 
citizen  of  the  Dominion  of  Canada  and  of  the  Empire  of  Great 
Britain."  Rondot  v.  Rogers  (6th  Cir.),  79  Fed.  676,  25  C.  C.  A.  145. 
Or,  where  the  defendant  was  described  as  "the  consul  at  the  port 
of  New  York  for  the  kingdoms  of  Norway  and  Sweden."  Bors  v. 
Preston,  111  U.  S.  252,  28  L.  Ed.  419.  Or,  "all  of  whom  reside  in  the 
City  of  Mexico,  Republic  of  Mexico."  International  Bank  &  Trust 
Co.  v.  Scott  (5th  Cir.),  159  Fed.  58,  86  C.  C.  A.  248.  Or,  that  a  citizen 
of  the  United  States  has  "become  permanently  domiciled  in  the  town 
of  Grand  Forks  in  the  Province  of  Britisk  Columbia  and  now  resides 
there,  and  that  he  intends  to  become  a  naturalized  citizen  of  that 
country."     Bishop  v.  Averill,  76  Fed.  386. 


ALLEGATIONS   OF    CITIZENSHIP.  39 

An  American  woman  who  marries  a  foreigner,  takes  the  nationality 
of  her  husband.  Section  3  of  the  Act  of  March  2,  1907,  34  Stat.  L., 
1228;  United  States  v.  Cohen  (2d  Cir.),  179  Fed.  834,  103  C.  C.  A.  28; 
Mackenzie  v.  Hare  (California),  134  Pac.  813;  as  to  citizenship  of 
married  women,  see  note  in  65  C.  C.  A.  5,  to  Hopkins  v.  Fachant, 
(5  C.  C.  A.  1. 

A  defective  allegation  of  alienage  may  be  cured  by  amendment. 
Stuart  V.  Easton,  156  U.  S.  46,  39  L.  Ed.  341;  Rondot  v.  Rogers  (6th 
Cir.),  79  Fed.  676,  25  C.  C.  A.  144;  Betzoldt  v.  Amer.  Ins.  Co.,  47 
Fed.  705. 

(2)  A  suit  by  an  alien  against  a  citizen  must  be  brought  in  the 
division  and  district  of  the  residence  of  the  defendant,  or  defendants, 
unless  waived  by  the  defendant.  Sections  51-2-3  of  the  Judicial  Code; 
Galveston,  etc.  R.  Co,  v.  Gonzales,  151  U.  S.  496,  38  L.  Ed.  248; 
Colosino  V.  Pittsburg,  etc.  R.  Co.,  210  Fed.  550;  Grabsky  v.  Belmont 
Coal  Mining  Co.,  210  Fed.  553;  Adzenoska  v.  Erie  R.  Co.,  210  Fed. 
571;  M'Aulay  v.  Moody,  185  Fed.  144;  Friborg  v.  Pullman  Co.,  176 
Fed.  981. 

Jurisdiction  of  suits  by  or  against  an  alien.  Section  24  of  the 
Judicial  Code  vests  the  district  court  with  jurisdiction  of  controversies 
between  citizens  of  a  state  and  foreign  states,  citizens  or  subjects, 
where  the  requisite  jurisdictional  amount  is  involved.       y 

Foreign  citizens  or  subjects  include  aliens  residing  in  this  country, 
Breedlove  v.  Nicollet,  7  Pet.  413,  431,  8  L.  Ed.  731;  Nichols  Lumber 
Co,  v.  Franson,  203  U.  S.  278,  51  L.  Ed.  181;  Mahoning  Valley  Ry. 
Co,  V,  O'Hara  (6th  Cir.),  196  Fed.  945,  116  C.  C.  A.  495. 

Also  aliens  not  residing  in  this  country.  Hennessy  v.  Richardson 
Drug  Co.,  189  U.  S.  25,  47  L.  Ed.  697;  National  Steamship  Co.  v. 
Tugman,  106  U.  S.  118,  27  L.  Ed.  87. 

And  also  corporations  organized  under  the  laws  of  a  foreign 
country.  National  Steamship  Co.  v.  Tugman,  106  U.  S.  118,  27  L. 
Ed.  87;  Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  100,  42  L.  Ed.  964. 

The  residence  of  an  alien  does  not  affect  federal  jurisdiction.  He 
may  reside  in  the  same  state  as  the  adverse  party,  or  another  state, 
or  abroad,  Breedlove  v.  Nicollet,  7  Pet.  413,  8  L.  Ed.  731;  Nichols 
Lumber  Co.  v.  Franson,  203  U.  S.  278,  51  L.  Ed.  181;  Jewish  Coloniza- 
tion Association  v.  Solomon,  125  Fed.  994. 

An  alien  may  be  either  plaintiff  or  defendant,  but  a  suit  between 
aliens  can  not  be  maintained.  Montalet  v.  Murray,  4  Cranch.  46,  2 
L.  Ed.  545;  Merchants  Cotton  Press  Co.  v.  Insurance  Co.,  151  U.  S. 
368,  385-6,  38  L,  Ed.  195;  Gage  v.  Riverside  Trust  Co.,  156  Fed.  1002; 
Pooley  V.  Luco,  72  Fed.  561. 

In  suits  by  or  against  aliens,  the  adverse  party  must  be  a  citizen 
of  a  state.  Hepburn  v.  Ellzey,  2  Cranch.  445,  2  L.  Ed.  332;  Hodgson 
V.  Bowerbank,  5  Cranch.  304,  3  L.  Ed.  108;  Montalet  v.  Murray,  4 
Cranch.  46,  2  L.  Ed.  545;  Pooley  v.  Luco,  72  Fed.  561. 


40  JURISDICTION. 

A  resident  in  the  District  of  Columbia  (Land  Co.  v.  Elkins,  20 
Fed.  545),  or  a  resident  of  a  territory  (New  Orleans  v.  Winter,  1 
Wheat.  91,  4  L.  Ed.  44;  Fraenkl  v.  Cerecedo,  216  U.  S.  295,  54  L.  Ed. 
486),  or  a  citizen  of  the  United  States,  domiciled  abroad  (Hammer- 
stein  V.  Lyne,  200  Fed.  165),  or  a  state  (O'Connor  v.  Texas,  202  U. 
S.  501,  50  L.  Ed.  1120),  is  not  a  citizen  of  a  state  nor  an  alien  within 
the  meaning  of  the  judiciary  acts. 

An  Indian  is  not  an  alien  within  the  meaning  of  the  judiciary  acts. 
Paul  V.  Chilsoquie,  70  Fed.  401;  Karrahoo  v.  Adams,  1  Dill.  344,  No. 
7614  Fed.  Cas. 

The  citizenship  and  alienage  must  exist  at  the  time  the  suit  is 
begun.  Cook  v.  Lillo,  103  U.  S.  792,  26  L.  Ed.  460;  Jackson  v.  Allen, 
132  U.  S.  27,  33  L.  Ed.  249;  Anderson  v.  Watt,  138  U.  S.  694,  34  U 
Ed.  1078;  Ex  parte  Wisner,  203  U.  S.  449,  51  L.  Ed.  264. 


No.  34. 

Against  an  Alien. 

[Caption.] 

[In  a  suit  against  an  alien,  proceed  to  the  words  "complains  of 
the  defendant"  as  in  No.  2,  if  the  plaintiff  is  an  individual;  as  in 
No.  5,  if  the  plaintiff  is  a  firm;  as  in  A^o.  /,  if  the  plaintiff  is  a 
corporation;  or  as  may  be,  according  to  the  character  of  the 
plaintiff,  and  continue  as  follozvs]  :  complains  of  the  defendant, 

C.  D.,(l)  of  ,  who  is  a  subject  of  the  Emperor  [or  King, 

or  Queen,  or  as  may  be,  or,  a  citizen  of  the  RepubHc]  of ,(2) 

and  says: 

(1)  See  notes  to  No.  33. 

(2)  A  suit  against  an  alien  individual  or  corporation  may  be 
brought  in  any  district  in  which  service  may  be  had  upon  the  defend- 
ant. In  re  Hohorst,  150  U.  S.  653,  659,  37  L.  Ed.  1211;  Barrow  Steam- 
ship V.  Kane,  170  U.  S.  100,  112;  Vestal  v.  Ducktown,  etc.  Iron  Co.,  210 
Fed.  375;  Ladew  v.  Tennessee  Copper  Co.,  179  Fed.  245,  253,  affirmed 
218  U.  S.  357,  54  L.  Ed.  1069. 


No.  35. 

By  an  Alien  Corporation. 

[Caption.] 

The  A.  B.  Co.,  a  foreign  corporation  ( 1 )  organized  and  exist- 
ing by  virtue  of  the  laws  of  the  kingdom  [or  republic]  of  , 

and  having  its  principal  offices  for  the  transaction  of  its  business 


ALLEGATIONS   OF    CITIZENSHIP.  41 

at in  said  kingdom  [or  republic],  plaintiff  in  this  suit,  com- 
plains of  the  defendant  [continue  from  this  point  as  in  No-  2,  if 
the  defendant  is  an  individual ;  as  in  No.  ./,  if  the  defendant  is  a 
firm;  as  in  A' a.  7,  if  the  defendant  is  a  corporation;  or  as  may  he, 
according  to  the  character  of  the  defendant]. 

(1)  A  suit  by  or  against  an  alien  corporation,  in  its  corporate  name, 
is  presumed  to  be  a  suit  by  or  against  the  members  of  the  corpora- 
tion, who  are  conclusively  presumed  to  be  citizens  or  subjects  of  the 
foreign  state  creating  the  corporation.  For  purposes  of  jurisdiction 
in  the  federal  courts,  a  corporation  of  a  foreign  state  is  deemed 
constructively  to  be  a  citizen  or  subject  of  such  state.  Steamship 
V.  Tugman,  106  U.  S.  118,  27  L.  Ed.  87. 

See  also  notes  to  No.  33. 


No.  36. 

Against  an  Alien  Corporation. 

[Caption.] 

[Fn  a  suit  against  an  alien  corporation,  proceed  to  the  words 
"complains  of  the  defendant"  as  in  No.  2,  if  the  plaintiff  is  an 
individual ;  as  in  No.  5,  if  the  plaintiff  is  a  firm;  as  in  No.  7,  if 
the  plaintiff  is  a  corporation ;  or  as  may  be,  according  to  the 
character  of  the  plaintiff,  and  continue  as  follows]  :  complains 
of  the  defendant.  The  C.  D.  Co.,  a  foreign  corporation  ( 1 )  created 
and  existing  under  and  by  virtue  of  the  laws  of  the  kingdom  [or 
republic]  of  ,  and  having  its  principal  offices  for  the  trans- 
action of  its  business  at ,  in  said  kingdom  [or  republic],  and 

having  an  office,  or  general  manager  and  place  of  business  at 

,  in  the  state  of  ,  within  the  territorial  jurisdiction  of 

this  court.  (2) 

(1)  See    note    to    No.    35. 

(2)  A  foreign  corporation  may  be  sued  in  any  district  or  division 
in  which  it  may  be  served.  In  re  Hohorst,  ISO  U.  S.  653,  659.  37 
L.  Ed.  1211;  Barrow  Steamship  v.  Kane,  170  U.  S.  100.  112;  Vestal  v. 
Ducktown,  etc.  Iron  Co.,  210  Fed.  375;  Ladew  v.  Tennessee  Copper 
Co.,  179  Fed.  245,  253,  affirmed  218  U.  S.  357,  54  L.  Ed.  1069. 


42  JURISDICTION. 

No.  37. 

Citizen  against  an  Alien  and  a  Citizen. 

[Caption.] 

A.  B.,  who  is  a  citizen  of  the  state  of  ,  residing  at  

in  said  state,  plaintiff  in  this  suit,  complains  of  the  defendants, 

C.  D.,  who  is  a  citizen  of  the  state  of  ,  residing  at  in 

said  state,  and  an  inhabitant  of  the division  of  the  

district  of ,  and  E.  G-,  who  is  a  subject  of  the  Emperor 

[or  King,  or  Queen,  or  as  may  be,  or,  a  citizen  of  the  republic] 
of  ,(1)  and  says: 

(1)  An  alien  may  be  joined  with  a  citizen  of  a  different  state  from 
that  of  the  adverse  party.  Puget  Sound  Traction,  etc.  Co.  v.  Lawrey, 
202  Fed.  263;  Roberts  v.  Pacific,  etc.  Navigation  Co.  (9th  Cir.),  121 
Fed.  785,  58  C.  C.  A.  61;  Ladew  v.  Tennessee  Copper  Co.,  179  Fed. 
245,  affirmed  218  U.  S.  357,  54  L.  Ed.  1069. 

An  alien  can  not  be  joined  with  a  citizen  of  the  same  state  as 
that  of  the  defendant.  King  v.  Cornell,  106  U.  S.  395,  27  L.  Ed.  60; 
Watson  V.  Evers,  13  Fed.  194;  Ilervey  v.  Midland  Ry.  Co.,  No.  6434 
Fed.  Cas.,  7  Bis.  103. 

Aliens  can  not  be  on  both  sides  of  the  case.  Montalet  v.  Murray, 
4  Cranch.  46,  2  L.  Ed.  545;  Merchants'  Cotton  Press  Co.  v.  Insurance 
Co.,  151  U.  S.  368.  385-6,  38  L.  Ed.  195;  Gage  v.  Riverside  Trust  Co., 
156  Fed.  10O2;  Pooley  v.  Luco,  72  Fed.  561;  Laird  v.  Assurance  Co., 
44  Fed.  712. 


No.  38. 

State  against  a  State  (1). 

[Caption.] 
To  the  Honorable  the  Chief  Justice  and  the  Associate  Justices  of 
the  Supreme  Court  of  the  United  States : 

Plaintiff,  the  state  of  Ohio,  and  one  of  the  states  of  the  United 
States  of  America,  by  A.  B.,  its  attorney  general,  presents  this 
bill  of  complaint  [or  petition]  against  tlie  state  of  West  Vir- 
ginia, also  one  of  the  states  of  the  United  States  of  America, 
by  virtue  of  the  direction  and  authority  contained  in  a  joint  reso- 
lution of  the  general  assembly  of  the  state  of  Ohio,  adopted  on 
the  25th  day  of  March,  1910,  a  copy  of  which  joint  resolution 
is  hereto  attached,  marked  "Exhibit  A,"  and  as  fully  made  a  part 
hereof  as  if  copied  herein,  and  also  by  the  written  direction  of 


ALLEGATIONS  OF   CITIZENSHIP.  43 

the  governor  of  the  slate  of  Ohio  under  authority  of  Section  333 
of  the  General  Code  of  Ohio;  and  thereupon  plaintiff  says: 

(1)  Controversies  between  states  are  within  the  original  jurisdic- 
tion of  the  United  States  Supreme  Court,  and  are  in  no  wise  affected 
by  the  Eleventh  Amendment  to  the  United  States  Constitution. 
Kansas  v.  Colorado,  206  U.  S.  46,  51  L.  Ed.  956;  Article  III,  Section  2 
of  the  United  States  Constitution;  Section  233  of  the  Judicial  Code. 
And  the  mentioned  section  of  the  Judicial  Code  makes  such  jurisdic- 
tion exclusive.  A  great  variety  of  questions  arising  in  connection 
with  such  suit  has  been  considered  by  the  court  in  the  interesting 
litigation  between  Virginia  and  West  Virginia,  206  U.  S.  290,  51  L. 
Ed.  1068,  and  209  U.  S.  514,  220  U.  S.  1,  222  U.  S.  17,  231  U.  S.  89,  234 
U.  S.  117,  238  U.  S.  202,  241  U.  S.  531,  and  246  U.  S.  565,  62  L.  Ed.  883. 

For  a  list  of  the  cases  decided  in  the  United  States  Supreme  Court 
between  states,  see  246  U.  S.,  in  the  footnote  on  page  591,  and 
in  62  L.  Ed.  886. 

And  as  to  the  enforcement  of  its  decision  in  such  cases,  see  the 
opinion  in  246  U.  S.  565,  at  page  589  to  606,  62  L.  Ed.,  pages  885 
to  892. 


No.  39. 

United  States  (1)  against  a  Corporation. 

[Caption.] 

Now  comes  the  United  States  of  America,  by  James  H.  Wilker- 
son,  United  States  attorney  for  the  northern  district  of  Illinois, 
and  brings  this  action  on  behalf  of  the  United  States  against  the 
Chicago,  Rock  Island  and  Pacific  Railroad  Company,  a  corpora- 
tion organized  and  doing  business  under  the  laws  of  the  states 
of  Illinois  and  Indiana,  and  having  an  office  and  place  of  busi- 
ness at  Blue  Island  in  the  state  of  Illinois;  this  action  being 
brought  upon  suggestion  of  the  attorney  general  of  the  United 
States  at  the  request  of  the  interstate  commerce  commission, 
and  upon  information  furnished  by  said  commission. 

(1)  The  district  court  has  jurisdiction  in  such  case,  in  both  law 
and  equity,  in  civil  suits.  The  Judicial  Code,  Sec.  24,  paragraph  1; 
the 'jurisdiction  here  conferred  extends  to  any  suit  in  which  the 
United  States  properly  appears  as  plaintiflf.  U.  S.  v.  Allen,  171  Fed. 
907.  Where  the  receiver  of  a  national  bank  sues.  Murray  v.  Chambers, 
151  Fed.  142.  And  to  proceedings  in  eminent  domain.  Kohl  v.  U.  S., 
91  U.  S.  367,  23  L.  Ed.  449. 


44  JURISDICTION. 

It  is  immaterial  of  course  that  the  defendant  is  an  individual,  the 
language  of  the  Judicial  Code  being  general,  "brought  by  the  United 
States  or  by  an  officer  thereof,  etc."    Section  24,  paragraph  1. 

But  if  the  suit  is  brought  by  the  United  States  against  a  state, 
Section  233  of  the  Judicial  Code  will  govern  and  the  supreme  court 
has  exclusive  jurisdiction.  U.  S.  v.  Texas,  143  U.  S.  621,  36  L.  Ed. 
285,  in  which  the  question  of  jurisdiction  is  considered  on  its  merits 
at  great  length.    U.  S.  v.  Michigan,  190  U.  S.  379,  47  L.  Ed.  1103. 


No.  40. 

United  States  against  a  State. 

Original  No.  .  October  Term,  . 

United  States,  Plaintiff,  ^ 

vs.  >     Bill  of  Complaint. 

State  of  Michigan,  Defendant.  ) 

To  the  Chief  Justice  and  the  Associated  Justices  of  the  Supreme 
Court  of  the  United  States,  in  Equity : 

Philander  C.  Knox,  attorney  general  of  the  United  States  of 
America,  for  and  in  behalf  of  said  United  States,  brings  this 
bill  of  complaint  against  the  state  of  Michigan,  and  thereupon 
complains  and  says : 

See  note  under  No.  39. 


No.  41. 

Commencement  where  Corporation  (1)  Sues  a  County. 

[Caption.] 

The  plaintiff  complains  of  defendant  and  for  cause  of  action 
alleges : 

I.  That  it  is  now  and  was  at  all  the  times  herein  mentioned 
a  corporation  organized  and  existing  under  and  by  virtue  of  the 
laws  of  the  state  of  Washington,  and  a  citizen  of  said  state. 

II.  That  the  defendant  is  now  and  was  at  all  the  times  herein 
mentioned  a  county,  created,  organized  and  existing  under  and 
by  virtue  of  the  laws  of  the  state  of  Montana,  and  a  citizen  of 
said  state. 

(1)  See  notes  under  No.  7. 


FEDERAL   JURISDICTION.  45 

FEDERAL  JURISDICTION. 

No.  41a. 

Allegations  of  Federal  Question  (1). 

[Caption.] 

Further  complaining,  your  orator  avers  that  the  said  pretended 
law  (of  the  state  of  Arizona)  is  unconstitutional,  null  and  void, 
because  the  same  is  repugnant  to  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States  and  repugnant  more  par- 
ticularly to  that  clause  of  said  amendment  which  provides  that 
no  state  shall  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  and  particularly  to  that  clause  of 
said  amendment  which  prohibits  any  state  from  denying  to  any 
person,  within  its  jurisdiction  the  equal  protection  of  the  laws ; 
that  said  pretended  law  is  repugnant  to  and  in  violation  of  the 
provisions  of  Section  1979  of  the  Revised  Statutes  of  the  United 
States,  in  that  it  pretends  to  jusify  the  said  defendant  Truax 
and  does  colorably  warrant  the  said  defendant  Truax,  in  depriv- 
ing this  complainant  of  the  right,  privilege  and  immunity  secured 
to  him  by  the  constitution  and  laws  of  the  United  States,  to-wit : 
the  right,  privilege  and  immunity,  without  discrimination  as  an 
alien,  to  be  employed  in  the  lawful  employment  of  which  he  is 
now  threatened  to  be  deprived  by  said  defendant  Truax,  Said 
pretended  law  is  further  repugnant  to  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States  in  that  it  is  in  letter 
and  spirit  calculated  to  deprive  and  will  deprive  this  complainant 
and  all  others  in  like  situation  with  him,  of  the  right  freely  to 
contract  for  the  sale  of  their  said  labor,  of  the  right  to  certain 
employment  and  of  the  right  to  life  and  liberty  within  the  mean- 
ing of  said  Fourteenth  Amendment. 

Complainant  avers  that  this  suit  is  authorized  by  law  to  be 
brought  by  him  to  redress  his  deprivation,  under  the  color  of  a 
law  and  statute  of  a  state,  of  the  right,  privilge  and  immunity 
secured  to  him  by  the  Constitution  of  the  United  States,  and  by 
the  laws  of  the  United  States,  within  the  meaning  of  subdivision 
14,  of  section  24,  of  an  act  of  congress  of  March  3,  1911,  being 
an  act  to  codify,  modify  and  amend  the  laws  relating  to  the 
judiciary. 


46  JURISDICTION. 

(1)  As  to  federal  question,  see  the  Judicial  Code,  Section  24, 
paragraph  1,  in  which  the  requirement  of  a  jurisdictional  amount  is 
prescribed,  and  the  following  paragraphs  of  the  same  section  setting 
forth  many  specific  cases  in  which  suit  depends  on  the  federal  question 
without  a  requirement  of  amount,  and  in  many  other  statutes  which 
are  special  and   contain   generally   the   requirements   for  jurisdiction. 

That  the  controversy  involves  a  federal  question,  or  arises  under 
the  federal  Constitution  or  a  federal  law,  must  appear  in  the  record 
by  plaintiff's  pleading.  Spencer  v.  Duplan  Silk  Co.,  191  U.  S.  526,  48 
L.  Ed.  287;  hence  if  defendant  alone  invokes  the  Constitution  and 
laws  of  the  United  States  the  case  does  not  "arise  under"  them. 
Ibidem. 

An  allegation  that  plaintiff's  franchise  was  impaired  by  the  action 
of  a  municipal  council  (ordinance  having  been  set  forth)  and  its 
property  taken  thereunder  without  due  process  of  law,  sets  out  a 
case  arising  under  the  Constitution  and  laws,  and  is  sufficient  for 
jurisdictional  purposes.  Pac.  El.  Ry.  Co.  v.  Los  Angeles,  194  U.  S. 
112,  48  L.  Ed.  896. 

Where  a  plaintiff  brings  his  suit  for  infringement  under  the 
patent  laws  his  case  "arises  under"  the  laws  of  the  United  States; 
jurisdiction  can  not  be  conferred  by  the  answer,  nor  can  it  be  lost 
by  any  denial  in  the  answer;  and  if  the  plaintiff  make  a  substantial 
claim  under  an  Act  of  Congress  there  is  jurisdiction,  whether  the 
claim  ultimately  be  held  good  or  bad.  The  Fair  v.  Kohler  Die  Co., 
228  U.  S.  22,  57  L.  Ed.  716;  likewise  in  Mutual  Film  Co.  v.  Industrial 
Commission  of  Ohio,  215  Fed.  138,  where  a  petition  raises  federal 
questions  it  is  sufficient  to  confer  jurisdiction  although  they  are 
decided  adversely  or  never  passed  upon;  and  in  M.  C.  R.  R.  v. 
Freeland,  227  U.  S.  59,  57  L.  Ed.  417,  although  the  supreme  court 
had  just  previously  decided  that  the  Federal  Employers'  Liability 
Act  was  unconstitutional  and  this  case  was  based  upon  said  Act,  the 
defense  being  the  unconstitutionality  thereof,  and  the  previous  deci- 
sions had  been  against  the  same  complainant  in  other  suits,  yet  the 
court  considered  other  pertinent  questions  in   the  case. 

A  suit  on  an  attachment  bond  given  in  a  federal  suit  is  a  suit 
involving  a  federal  question,  since  plaintiff  is  enforcing  rights  secured 
to  him  under  the  Constitution  and  laws  of  the  United  States.  The 
distinction  is  expressed  that  in  district  court  the  federal  question 
must  appear  in  plaintiff's  pleading,  while  in  the  supreme  court  on  error 
from  a  state  court  it  is  sufficient  if  the  question  is  clear  on  the 
transcript  of  the  record  filed.     Files  v.  Davis,  118  Fed.  465. 

A  complaint  sets  up  rights  in  opposition  to  the  adjudication  and 
the  appointment  of  trustees  in  a  proceeding  in  bankruptcy,  to  which 
complainants  are  not  parties;  they  seek  to  have  the  trustees  restrained 
from  prosecuting  a  suit  against  complaints  in  a  state  court,  and 
allege:  (a)  That  bankruptcy  proceedings  were  void  for  lack  of  juris- 
diction, (h)  That  the  entire  proceedings  were  a  fraud  on  the  Bank- 
ruptcy  Act,   and    (c)    That    even    if   the    proceedings    were   valid    the 


FEDERAL   JURISDICTION.  47 

appointment  of  the  trustees  is  void;  a  construction  of  the  said  Act 
is  necessary  to  determine  the  suit,  hence  a  federal  question  is  raised. 
Hull  V.  Burr,  234  U.  S.  712,  58  L.  Ed.  1557. 

In  a  suit  by  a  trustee  in  bankruptcy  upon  a  bond  given  in  a 
previous  action  to  enjoin  disposal  of  property  claimed  for  the  bank- 
rupt estate,  it  was  averred  "your  petitioner  further  avers  that  the 
said  1311  bales  of  cotton  wfire  at  the  time  of  the  bankruptcy  pro- 
ceedings and  have  ever  since  been  the  property  of  and  that 

as  trustee  in  bankruptcy  of  the  said  your  petitioner  as  afore- 
said is  the  owner  and  has  the  right,  title  and  interest  in  and  to  the 
said  1311  bales  of  cotton,  and  is  therefore  entitled  to  proceed  against 
and  to   demand,   collect   and  receive   the   principal   sum    of  the   bond 

filed   by  the   said  and  the   said  as   surety,"   and  in  an 

amended  petition  these  allegations  were  emphasized;  the  sole  question 
was  as  to  the  title  to  the  cotton,  and  that  did  not  raise  a  federal 
question,  merely  because  a  trustee  in  bankruptcy  is  suing,  the  court 
saying  that  "the  petition  must  assert  grounds  of  recovery  which 
involve  a  controversy  concerning  such  laws"  (i.  e.  federal  laws). 
Lovell  V.  Newman,  227  U.  S.  412,  57  L.  Ed.  577. 

In  McGoon  v.  N.  P.  R.  Co.,  204  Fed.  998,  Judge  Amidon  discusses 
the  authorities  bearing  upon  the  question  whether  a  suit  "arises 
under"  the  laws  of  the  United  States  at  great  length,  holding  that 
a  suit  against  a  carrier  for  damages  to  live  stock  shipped  in  inter- 
state commerce  "arises  under"  Section  20  of  the  Act  to  Regulate 
Commerce,  inasmuch  as  the  complaint  sets  forth  a  cause  of  action 
of  which  federal  law  is  an  essential  ingredient.  Here  the  answer 
raised  only  questions  of  fact,  but  the  plaintiff  by  his  owri  statement 
of  the  cause  of  action  can  not  show  whether  the  defendant  will  take 
issue  as  "to  matters  of  fact  or  of  law"  and  the  plaintiff  must  be 
permitted  to  set  out  his  case  as  it  exists  at  the  time  he  pleads,  and 
this  is  clearly  the  majority  holding. 

Although  a  petition  alleges  that  the  cause  of  action  arises  under 
the  constitution  and  laws  of  the  United  States,  yet  the  court  will 
find  the  mere  averment  insufficient;  it  must  appear  that  the  suit 
"substantially  and  really  involves  a  dispute  or  controversy  respecting 
the  validity,  construction  or  effect  of  some  law  of  the  United  States 
upon  the  determination  of  which  the  result  depends."  Norton  v. 
Whiteside,  239  U.  S.  144,  60  L.  Ed.  186. 

In  an  action  in  ejectment  it  was  alleged  that  the  plaintiffs  were 
owners  in  fee  and  entitled  to  the  possession  of  the  land,  and  defend- 
ants had  forcibly  taken  possession  and  were  wrongfully  keeping  plain- 
tiffs out,  to  their  damage  in  a  sum  named.  Then  follow  the  allega- 
tions that  defendants  are  asserting  ownership  under  a  certain  deed 
which  is  void  because  of  legislation  by  Congress  restricting  aliena- 
tion of  lands  allotted  to  the  Choctaw  and  Chickasaw  Indians.  Held, 
that  these  latter  allegations  had  no  proper  place  in  the  petition,  and 
were  apparently  intended  to  anticipate  a  defense  and  must  be  dis- 
regarded  in    determining  whether   the  suit   is    one   arising   under  the 


48  JURISDICTION. 

federal  laws;  that  question  must  be  determined  from  what  necessarily 
appears  in  plaintiff's  statement  of  his  case  unaided  by  any  allegations 
of  anticipated  defenses.  Taylor  v.  Anderson,  234  U.  S.  74,  58  L.  Ed. 
1218.  Same  rule  in  L.  &  N.  R.  Co.  v.  Mottley,  211  U.  S.  149,  53  L. 
Ed.  126;  Boston,  Montana,  etc.,  Co.  v.  Montana  Ore,  etc.,  Co.,  188 
U.  S.  632,  47  L.  Ed.  626,  and  Tennessee  v.  Union  &  Planters  Bank, 
152  U.  S.  454,  38  L.  Ed.  511. 

A  frivolous  federal  question  is  'found  in  Deming  v.  Carlisle  Pack- 
ing Co.,  226  U.  S.  102,  57  L.  Ed.  140,  such  question  not  conferring 
federal  jurisdiction. 

An  allegation  "that  the  said  defendants  committed  the  trespass 
hereinbefore  complained  of  against  the  said  plaintiff  under  color  of 
the  authority  of  an  Act  of  the  General  Assembly  of  Virginia  which 
is  in  the  words  and  figures  following,  to-wit:  (not  copied),  which  Act 
is  repugnant  to  the  constitution  of  the  United  States  and  invalid 
for  the  following  reasons,  to-wit:  In  that  it  deprives  a  person  of 
his  liberty  without  due  process  of  law,  punishes  a  citizen  without 
trial,  without  a  proper  warrant  for  his  arrest  and  without  a  trial  by 
jury  *  *  *  ."  This  allegation  was  attacked  by  demurrer  as  antici- 
pating a  defense,  but  the  objection  was  not  sustained  inasmuch  as 
the  entire  allegation  was  needed  to  state  a  case.  Cox  v.  Gilmer,  88 
Fed.  343.  Further  as  illustrative  of  the  anticfpatory  allegation,  see 
Lancaster  v.  Kathleen  Oil  Co.,  241  U.  S.  551,  60  L.  Ed.  1161,  where 
the  suit  was  brought  to  recover  possession  of  land  leased  and  for  an 
injunction  restraining  defendant  from  asserting  any  rights  under  its 
lease  and  from  interfering  with  the  rights  of  plaintiff  under  plain- 
tiff's lease,*  and  the  further  allegation  was  made  that  defendants' 
lease  was  void  because  of  an  Act  of  Congress  providing  for  the 
descent  of  lands  allotted  to  Indians,  free  from  restrictions  against 
leasing,  and  plaintiff's  lease  had  been  so  obtained  earlier  than  de- 
fendants', and  that  if  the  Act  contained  restrictions  against  leasing  it 
was  unconstitutional;  this  was  held  non-anticipatory,  merely  a  state- 
ment of  plaintiff's  case,  and  embodying  a  federal  question. 

In  the  case  of  St.  Anthony's  Church  v.  Penna.  R.  Co.,  237  U.  S. 
575,  59  L.  Ed.  1119,  the  operation  of  the  railroad  trains  cast  soot,  black 
smoke,  cinders  and  noxious  gases  upon  the  adjoining  property  of 
complainant,  and  it  was  averred  that  "said  acts  of  defendant  have 
taken  from  your  orator  property  consisting  of  the  easement  of  light 
and  air  to  which  your  orator  is  legally  entitled,  and  deprives  it  of 
the  same  without  due  process  of  law  and  without  just  compensation, 
or  any  compensation  whatever,  and  that  such  acts  of  defendant  *  *  * 
have  been  and  now  are,  in  violation  of  the  provisions  of  the  constitu- 
tion of  the  United  States;"  the  court  ruled  that  they  were  not  aver- 
ments "expressly  and  clearly  made"  as  required  by  the  rule  laid  down 
in  Hull  V.  Burr,  234  U.  S.  712,  720. 

A  suit  on  a  state  statute  does  not  impliedly  and  necessarily  raise 
the  question  whether  such  statute  is  violative  of  the  federal  con- 
stitution.    Missouri  v.  C.  &  A.  Ry.,  216  Fed.  562. 


FEDERAL    JURISDICTION.  49 

Contracts  for  street  paving  were  properly  awarded  to  plaintiff  and 
subsequently  the  city  council  set  aside  the  awards,  and  suit  for  specific 
performances  was  brought,  in  which  it  was  alleged  that  plaintiff 
would  be  deprived  of  large  profits  to  accrue  from  the  contract,  and 
that  the  action  of  the  city  "is  in  violation  of  the  constitution  of  the 
United  States  and  is  an  attempt  to  deprive  the  plaintiff  of  property 
without  due  process  of  law,"  urging  that  plaintiff  had  a  vested  interest 
in  the  contract;  but  the  court  held  that  the  allegation  did  not  confer 
federal  jurisdiction,  for  breach  of  contract  is  the  essence  of  the  com- 
plaint, and  breach  is  not  taking  property  without  due  process  of  law 
nor  is  the  obligation  of  a  contract  thereby  impaired  in  the  sense  of 
the  federal  constitution.  McCormick  v.  Oklahoma  City,  236  U.  S. 
657,  59  L.  Ed.  771. 

Where  a  complaint  against  a  city  for  fixing  unreasonable  rates 
for  a  public  utility  avers  that  "no  power  to  regulate  the  rates  charged 
by  your  orator  or  other  telephone  companies  has  been  granted  by 
the  constitution  or  laws  of  the  state  of  Kentucky,  or  in  any  other 
way,  and  the  enactment  of  the  said  ordinance  is  void  and  an  assump- 
tion of  power  and  authority  on  the  part  of  the  said  common  council 
unwarranted  and  unfounded,"  no  federal  question  was  involved  for 
the  state  had  not  acted;  on  the  contrary  the  state  by  the  terms  of 
the  complaint  was  exonerated.  City  of  Louisville  v.  Cumberland 
Tel.  Co.,  155  Fed.  725,  84  C.  C.  A.  151.  To  same  effect  is  Mayor,  etc., 
of  Savannah  v.  Hoist,  132  Fed.  901,  65  C.  C.  A.  449,  and  Barney  v. 
City  of  New  York,  193  U.  S.  430,  48  L.  Ed.  Ill,  where  it  appeared 
that  the  city  was  acting  in  opposition  to  plain  prohibitions  of  the 
state  law.  But  where  it  was  alleged  that  an  ordinance  which  under- 
took to  reduce  the  rates  of  street  car  fares  below  the  rate  contained 
in  the  contract  embodied  in  the  franchise,  violated  the  provisions  of 
Section  1  of  Article  X  of  the  constitution  of  the  United  States,  since 
it  impaired  the  obligation  of  contract,  a  federal  question  was  stated, 
and  any  inquiry  as  to  whether  the  state  has  authorized  the  wrong 
is  irrelevant.  Portland  Ry.,  Light  &  Power  Co.  v.  City  of  Portland, 
210  Fed.  667;  and  see  Home  Tel.  Co.  v.  Los  Angeles,  227  U.  S.  278, 
57  L.  Ed.  510,  distinguishing  Barney  v.  New  York,  above.  On  the 
general  proposition  of  lowering  rates  of  a  public  utility  as  involving 
a  violation  of  federal  law,  see  also  City  of  Owensboro  v.  Cumber- 
land Tel.  Co.,  174  Fed.  739,  99  C.  C.  A.  1. 

In  a  suit  to  foreclose  a  mortgage  of  the  Texas  &  Pacific  Rail- 
way Company,  it  was  alleged  that  defendant  is  a  corporation  created 
by  and  existing  under  the  laws  of  the  United  States,  has  its  principal 
place  of  business  and  its  principal  operating  and  general  offices  in 
the  northern  district  of  Texas  and  is  a  resident  of  that  district  and  an 
inhabitant  thereof;  that  the  act  of  congress  creating  said  corpora- 
tion provides  that  said  company  by  that  name  shall  be  able  to  sue 
and  be  sued,  plead  and  be  impleaded,  defend  and  be  defended,  in 
all   courts   of   law   and   equity    within    the    United    States;    that   said 


50  JURISDICTION. 

company  acting  in  pursuance  of  the  authority  conferred  by  said 
act  of  congress  executed  and  delivered  the  mortgage  in  suit;  that  said 
mortgage  was  duly  filed  and  recorded  in  the  Department  of  the 
Interior  pursuant  to  said  act  of  congress;  that  the  said  company  has 
defaulted  in  the  performance  of  the  terms  and  conditions  of  the  said 
mortgage;  that  this  suit  involves  the  requisite  jurisdictional  amount 
and  arises  under  the  constitution  and  laws  of  the  United  States.  Held 
that  although  mere  federal  incorporation  conferred  federal  jurisdic- 
tion as  frequently  decided,  yet  the  act  of  January  28,  1915,  38  Stat. 
L.,  803,  had  prescribed  a  difTerent  rule  in  the  case  of  railroads  so 
incorporated;  further,  the  provisions  of  the  creating  act  conferring 
the  right  to  sue,  etc.,  in  any  court  within  the  United  States,  confers 
no  particular  jurisdiction  upon  federal  courts,  and  so  on  ground 
of  a  federal  question  there  was  no  jurisdiction  to  entertain  this  suit. 
Further,  the  court  decided  the  very  interesting  question  whether  a 
corporation  created  by  congress  may  be  brought  into  a  federal  court 
on  the  ground  of  diversity  of  citizenship,  holding  that  such  corpora- 
tion can  not  be  a  citizen  of  any  state  and  answering  the  question 
in  the  negative.  Bankers  Trust  Co.  v.  Texas  &  Pacific  Railway  Co., 
241  U.  S.  295,  60  L.  Ed.  1010. 

In  a  suit  to  enjoin  a  labor  union  plaintiff  avers  that  it  is  engaged 
in  the  manufacture  of  munitions  for  the  United  States  from  materials 
furnished  thereby,  in  a  building  equipped  and  erected  thereby,  under 
a  contract  requiring  preference  for  such  work,  and  all  supplies 
shipped  in  and  products  shipped  out  move  in  interstate  commerce  for 
government  purposes,  and  that  large  supplies  of  food  for  men  engaged 
in  such  work  have  been  provided  by  the  government,  all  to  the  end 
that  munitions  in  large  quantities  may  be  furnished  quickly,  as  con- 
templated in  the  acts  of  congress  in  that  behalf;  held,  a  federal  ques- 
tion is  involved  on  the  theory  that  plaintifif  is  a  government  agency 
to  as  great  an  extent  as  though  it  had  been  incorporated  under  and 
in  pursuance  of  federal  laws.  The  court  expressly  declined  to  base 
federal  jurisdiction  on  the  Sherman  Anti-trust  Law,  or  the  Pure  Food 
Act,  or  the  Sabotage  Act  or  the  Sedition  Act,  as  urged  by  plaintifif, 
but  placed  it  on  a  "much  larger  and  broader  ground"  as  above  stated. 
Wagner  Electric  Mfg.  Co.  v.  District  Lodge,  etc.,  252  Fed.  597. 

Liberty  Loan  Bonds  are  by  the  tenor  of  the  acts  providing  for 
their  emission  exempt  from  taxation,  and  a  suit  against  a  state  taxing 
ofificer  to  prevent  their  taxation,  on  the  ground  that  they  arc  owned 
by  a  bank  and  hence  should  be  taxed  as  "value  of  shares  owned  by 
the  stockholders,"  involves  a  federal  question.  Iowa  L.  &  T.  Co.  v. 
Fairweather,  252  Fed.  605. 

And  generally  on  this  question,  see  the  notes  in  Bailey  v.  Mosher, 
11  C.  C.  A.  308;  Montana,  etc.,  Co.  v.  Boston,  etc.,  35  C.  C.  A.  7; 
Earnheart  v.  Switzler,  105  C.  C.  A.  262. 


FEDERAL    JURISDICTION.  51 

No.  41b. 

Allegations  of  Amount  Involved  (1). 

[Caption.] 

Plaintiff  further  alleges  that  the  matter  in  controversy  herein 
exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value  of 
three  thouband  dollars  ($3000.00). 

(1)  This  allegation  is  frequently  not  made  in  a  formal  manner, 
but  the  requisite  jurisdictional  amount  must  be  made  to  appear  in 
the  plaintiff's  pleading.  The  Judicial  Code,  section  24,  paragraph  1, 
provides  for  the  general  jurisdiction  of  the  district  court,  and  re- 
quires that  more  than  three  thousand  dollars  exclusive  of  interest 
and  costs  be  involved  where  the  jurisdiction  is  predicated  upon  (a) 
diversity  of  citizenship  or  (b)  the  presence  of  a  federal  question. 
Therefore  in  order  to  make  a  complete  showing  of  jurisdiction  in 
such  cases  the  requisite  amount  must  be  involved  and  alleged. 

Parties  may  not  waive  the  amount  in  controversy.     Holt  v.  Indiana 

Mfg.  Co.,  176  U.  S.  68,  44  L.  Ed.  374;  Pepper  v.   Rogers,  128  Fed.  987. 

In  a  suit  on  two  promissory  notes  of  $1,000  each  in  which  attorney's 

fees  were   stipulated,  more   than   the  minimum  jurisdictional   amount 

was  found  to  be  involved  (under  earlier  statute).    231  U.  S.  541. 

The  amount  must  appear  by  distinct  averment  upon  the  face 
of  the  petition  or  otherwise  in  the  proofs.  Pinel  v.  Pinel,  240  U.  S. 
594,  60  L.  Ed.  817;  in  this  case  two  children  alleging  statutory  intestacy 
as  to  each,  unite  in  a  suit  averring  "complainant,  Herman  Pinel,  is 
entitled  to  an  undivided  one-eighth  interest,  and  complainant,  Sarah 
Slyfield,  to  an  undivided  two-eighths  interest,  or  in  all  both  com- 
plainants together  to  an  undivided  three-eights  interest  in  the  afore- 
said property,  which  said  interests  are  of  the  value  of  $4,500  and 
upwards,  over  and  above  all  incumbrances,"  and  they  ask  that  their 
title  to  that  be  established.  But  the  court  found  that  the  interests 
were  separate  and  distinct  and  each  must  equal  the  jurisdictional 
amount,  and  under  the  facts  this  did  not  appear.  In  Shewalter  v. 
Lexington,  143  Fed.  161,  it  was  alleged  "that  the  matter  in  dispute, 
which  is  the  title  to  certain  real  estate,  exceeds  the  sum  or  value  of 
$2,000,  which  real  estate  is  situated  within  the  territorial  jurisdiction 
of  this  court,  and  by  these  proceedings  your  orator  seeks  to  quiet 
the  title  to  said  real  estate,  remove  a  cloud  from  the  title  thereof, 
and  to  decree  the  title  to  be  in  your  orator,  as  against  the  defendant 
herein,  who,  as  hereinafter  alleged  more  fully,  is  setting  up  a  claim 
and  lien  to  the  said,  real  estate,  and  is  threatening  to  sell  the  same 
and  acquire  the  title  thereto."  Here  the  cloud  existed  in  the  form 
of  a  street  improvement  certificate  of  less  than  two  thousand  dollars, 
and  the  court  held  that  that  was  the  amount  involved  and  not  the 
value  of  the  land. 


52  JURISDICTION. 

Where  a  one-third  interest  in  land  was  claimed,  the  allegation  was 
"complainants  are  informed  and  believe  that  the  whole  of  said  lands, 
situated  as  they  are,  adjoining  an  incorporated  town,  and  improved 
as  they  are,  are  worth  $12,000,  and  the  amount  demanded  by  them 
herein  is  more  than  two  thousand  dollars;"  this  was  held  argumenta- 
tive, leaving  the  court  to  make  a  calculation,  and  hence  insufificient. 
Dupree  v.  Leggette,  140  Fed.  776. 

In  a  case  where  jitney  auto  operators  were  required  by  statute  to 
give  an  indemnity  bond,  one  of  them  sued  on  behalf  of  himself  and 
about  three  hundred  others  in  a  similar  situation,  and  alleged  that 
"the  amount  involved  is  greater  than  $2,000,"  but  this  was  held  an 
insufficient  allegation,  because  the  interests  affected  were  separate 
and  the  damages  suffered  could  not  be  aggregated.  Nolen  v.  Reich- 
man,  225  Fed.  812.  In  a  suit  to  foreclo'se  a  mortgage  securing  a  note, 
plaintiff  alleged  that  he  "advanced  to  defendant  the  sum  of  $2,000  and 
advanced  to  pay  the  fee  for  recording  said  deed  the  sum  of  $2.25, 
for  which  defendant  is  liable  to  him,"  inasmuch  as  the  indebtedness 
of  $2.25  was  expressed  as  a  conclusion  of  law  and  no  facts  were 
averred  showing  an  agreement  to  reimburse,  the  amount  was  not 
sufficiently  averred.     Less  v.   English,  85  Fed.  471. 

"Defendants  unlawfully  entered  upon  said  lands  and  dispossessed 
plaintiff  thereof,  and  have  since  that  date  unlawfully  withheld  from 
the  plaintiff  the  possession  thereof,  to  his  damage  $2,000;  that  the 
value  of  said  land  is  $5,000,"  and  amending,  it  was  averred  that  "all 
of  said  defendants  jointly  have  taken  possession  of  said  land,  that 
the  entire  land  is  the  subject  of  controversy  as  between  plaintiff  and 
each  and  all  of  said  defendants,"  this  amended  petition  shows  a  joint 
claim  against  the  defendants  and  on  its  face  shows  a  controversy 
involving  $7,000,  and  is  sufficient.  Smitjiers  v.  Smith,  204  U.  S.  632, 
51  L.  Ed.  656. 

In  an  action  against  an  initial  carrier  for  loss  on  the  line  of  a 
connecting  carrier,  the  petition  merely  set  forth  the  shipment  and 
loss  and  stated  that  the  wool  shipped  was  delivered  to  the  carrier  in 
Iowa  to  a  destination  in  Pennsylvania,  naming  places,  but  did  not 
state  that  the  action  was  based  on  the  provisions  of  the  Carmack 
amendment,  although  the  statement  of  facts  clearly  showed  that  the 
shipment  was  made  in  interstate  commerce;  the  value  of  the  wool 
•was  stated  to  be  $1,500.  Since  the  value  involved  here  was  insufficient 
to  give  jurisdiction,  in  its  petition  to  remove  the  plaintiff  averred 
that  the  case  arose  imder  the  act  to  regulate  interstate  commerce, 
section  20,  but  the  court  held  that  that  fact  did  not  appear  from  the 
initial  petition,  and  remanded  the  case  to  the  state  court.  Adams  v. 
Chicago  &  G.  W.  Ry.  Co.,  210  Fed.  362.  But  in  T^artford  Fire  Ins.  Co. 
V.  K.  C,  M.  &  O.  Ry.  Co.,  251  Fed.  332,  under  a  very  similar  state- 
ment of  facts  it  was  held  that  federal  jurisdiction  was  shown,  since 
the  various  acts  of  congress  regulating  interstate  commerce  govern 
an  interstate  shipment. 


FEDERAL   JURISDICTION.  53 

In  Barry  v.  Edmunds,  116  U.  S.  550,  29  L.  Ed.  729,  it  was  alleged 
"that   the  defendant,   so   knowing   the   law,   levied   on   and   seized   the 
plaintiff's  property   in   contempt   of   and  in  detiance   of   the   law,   and 
with  the  deliberate  intention  of  defying  the  constitution  of  the  United 
States  and  the  judicial  power  thereof;  that  in  contempt  and  defiance 
thereof  the  defendant  had  made  public  advertisement  in  many  parts 
of  the  county  of  Fauquier  that  he  had  levied  on  and  seized  plaintiff's 
property  because  plaintiff  was  delinquent  as  a  taxpayer  and  that  he 
would  sell  the  same  at  public  auction   on  a  day  named  at  the  court 
house  in  said  county;  that  he  did  expose  and  sell,  etc.,  in  the  presence 
of  many  of  the  plaintiff's  neighbors  and   friends  and   fellow  citizens 
and    countrymen,    and    publicly    proclaimed    that    the    plaintiff   was    a 
defaulter  and  delinquent  taxpayer.     That  by  reason  thereof  plaintiff's 
credit    and    standing    were    greatly   injured,    and    his    feelings   cruelly 
wounded  and  mortified.     That  while  the  said   defendant  was  unlaw- 
fully and  wrongfully  on  plaintiff's  premises  as  aforesaid,  he  did  many 
other  wrongs  and  injuries  to  the  plaintiff  of  a  malicious   nature,  by 
all  of  which  wrongs  and  injuries  the  plaintiff  has  been   injured  and 
damaged  $6,000  and  therefore  he  brings  this  suit."     The  value  of  the 
property  taken  in  this  case  was  alleged  to  be  one  horse  worth  $125, 
and  the  court  held  that  exemplary  damages  were  recoverable  if  the 
ad  damnum  were  properly  laid,  and  here  the  amount  in  controversy 
appeared  sufficient  for  federal  jurisdiction. 

To  make  the  requisite  amount  a  counterclaim  may  be  added  to  the 
plaintiff's  claim,  if  under  the  laws  of  the  state  a  counterclaim  must 
be  set  up  or  be  barred  in  any  subsequent  suit.  Lee  v.  Continental 
Ins.  Co.,  74  Fed.  424,  and  contrarywise  if  the  state  law  does  not  bar 
it.  McKown  v.  Kansas,  etc.,  Co.,  105  Fed.  657,  discussing  the  cases 
pro  and  con  on  this  proposition.  In  a  late  case.  Central  Commercial 
Co.  V.  Jones-Dusenberry  Co.,  251  Fed.  IJ,  163  C.  C.  A.  263,  held  that 
where  defendant  pleaded  a  set-off  it  may  be  added  to  plaintiff's  claim 
to  determine  amount  involved  for  jurisdictional  purposes,  making  no 
mention  of  the  law  of  the  state,  and  citing  authorities.  The  position 
of  the  United  States  Supreme  Court  is  probably  indicated  in  its  dis- 
cussion of  the  legal  effect  of  asserting  a  counterclaim  in  Merchants 
Heat,  etc.,  Co.  v.  Clow,  204  U.  S.  286,  51  L.  Ed.  288.  although  not  on 
this  point. 

On  motion  to  dismiss  for  lack  of  requisite  amount  the  affidavit 
filed  in  support  of  the  motion  setting  out  values  may  be  taken  to 
supplement  the  complaint  and  answer.  Federal  Wall  Paper  Co.  v. 
Kempner,  244  Fed.  240. 

In  suit  against  a  water  company  to  restrain  proposed  schedule  of 
rates  as  unreasonable  and  violative  of  franchise,  the  defendant  peti- 
tioned for  removal  thus:  "That  said  suit  is  of  a  civil  nature,  wherein 
is  involved  the  question  of  the  right  of  your  petitioner  to  establish 
and  maintain  in  the  operation  of  its  plant  a  metered  service  and  to 
charge  a  meter  rate  therefor,  and  that  the  amount  and  value  in  con- 


54  JURISDICTION. 

troversy  in  the  suit  exceeds,  exclusive  of  interest  and  costs,  $3,000." 
Tlie  motion  to  remand  denied  allegation  of  amount  but  no  proofs 
were  offered  and  court  held  that  jurisdictional  amount  was  shown. 
Martin  v.  City  Water  Company,  197  Fed.  462. 

A  declaration  contains  a  special  count  upon  a  policy  of  insurance 
of  $2,250  for  specific  property,  alleges  a  total  loss  and  concludes  to 
the  damage  of  the  plaintiff,  $2,000,  "for  the  recovery  of  which  with 
just  costs  the  plaintiff  brings  this  suit;"  also  the  common  money 
counts  were  included  claiming  damage,  $2,000,  "for  the  recovery  of 
which,  etc.,"  as  above;  held  jurisdictional  amount  sufficiently  shown. 
Piatt  V.  Phoenix  Assurance  Company.  2)7  Fed.  730. 

Three  complainants,  on  behalf  of  themselves  and  many  others 
similarly  situated,  each  holding  an  insurance  policy  for  $3,000,  all 
issued  at  different  dates,  having  survived  the  term  of  payment  be- 
came entitled  to  share  in  a  fund  created  by  excess  premiums  under 
the  contract,  and  suing,  they  allege  that  the  fund  was  being  diverted 
to  purposes  inconsistent  with  their  rights.  Defendant  objected,  mter 
alia,  because  of  insufficient  jurisdictional  amount,  inasmuch  as  each 
complainant's  interest  is  separate  under  the  contract,  and  although 
they  may  sue  as  a  class  yet  they  have  several  interests  and  aggregat- 
ing can  not  be  permitted  to  show  jurisdictional  amount,  and  so  held. 
Eberhard  v.  N.  W.  Mut.  L.  Ins.  Co..  241  Fed.  353,  154  C.  C.  A.  233; 
in  this  case  on  a  previous  appeal,  the  mandate  had  required  complain- 
ants to  set  out  amount  of  their  interest  in  the  fund,  but  they  did  not 
do  so,  and  in  such  case  the  court  must  assume  the  interest  to  be  less 
than  the  jurisdictional  amount. 

An  allegation  "the  act  of  the  defendant  constitutes  an  invasion  of 
complainant's  business  privileges  to  his  loss  and  irreparable  injury 
of  over  $1,000,"  no  objection  was  made  in  the  trial  court,  and  now  on 
appeal  the  court  holds  that  the  matter  is  foreclosed  saying,  "And  there 
is  authority  for  our  holding  that  we  may  infer  that  unliquidated 
damages  alleged  to  be  over  $1,000  are  not  less  than  $2,000  exclusive 
of  interest  and  costs,  because  of  the  conduct  of  the  parties,  citing 
Giles  V.  Harris.  189  U.  S.  475,  485.  Williams  v.  Molther.  198  Fed.  460, 
117  C.  C.  A.  220. 

"Wherefore  the  plaintiff  prays  judgment  against  the  said  defend- 
ant for  the  said  sum  of  $530  with  interest  thereon  from  the  respective 
dates  of  the  notes  which  are  now  past  due.  together  with  the  further 
sum  of  $1,664.04,  which  will  become  due  and  payable  on  the  1st  and 
8th  days  of  December,  1891  (the  following  month),  with  interest 
thereon  from  the  respective  dates  of  said  notes,  and  the  plaintiff  prays 
that  it  recover  a  judgment  for  all  of  its  costs  paid  out  and  expended 
in  this  action,  and  for  all  reasonable  costs  of  collection  of  the  above 
mentioned  indebtedness  (to  become  due)  and  for  attorney's  fees  in 
the  sum  of  $250."  this  expressed  the  required  jurisdictional  amount 
although  it  was  not  all  due  at  the  date  of  the  suit.  Schunk  v.  Molina 
Co.,  147  U.  S.  500.  2>7  L.  Ed.  255. 


DECLARATIONS  AND  PETITIONS.  55 

Suit  by  assignee  of  claims  aggregating  $2,336.64,  no  one  of  which 
equalled  the  jurisdictional  amount,  and  court  held  that  they  could  be 
aggregated.  Tennent-Stnbling  Shoe  Co.  v.  Roper,  94  Fed.  739,  36 
C.  C.  A.  455. 

In  O.  R.  and  X.  Co.  v.  Shell,  143  Fed.  1004,  it  is  said  that  where 
the  allegation  of  amount  in  the  petition  is  put  in  issue  by  the  answer, 
it  must  be  sustained  by  proof  or  it  fails. 

Generally,  on  this  subject,  see  the  notes  in  Auer  v.  Lombard,  19 
C.  C.  A.  75;  Tennent-Stribling  Shoe  Co.  v.  Roper,  36  C.  C.  A.  459; 
Lewis  Mercantile  Co.  v.  Klepner,  100  C.  C.  A.  288. 


SUITS  AT  LAW* 
DECLARATIONS  AND  PETITIONS 


*  In  civil  suits  at  law  in  the  district  courts  of  the  United  States 
the  pleadings  conform  as  near  as  may  be  to  the  pleadings  in  like  causes 
in  the  courts  of  record  in  the  states  within  which  such  federal  court  is 
held,  except  in  those  particulars  which  are  regulated  by  federal 
statutes. 

Section  914  of  the  Revised  Statutes  of  the  United  States  provides 
that  "the  practice,  pleadings,  and  forms  and  modes  of  proceeding  in 
civil  causes,  other  than  equity  and  admiralty  causes,  in  the  circuit 
and  district  courts  shall  conform,  as  near  as  may  be,  to  the  practice, 
pleadings,  and  forms  and  modes  of  proceeding  existing  at  the  time  in 
like  causes  in  the  courts  of  record  of  the  state  within  which  such 
circuit  or  district  courts  are  held,  any  rule  of  court  to  the  contrary 
notwithstanding." 

This  provision  applies  generally  to  civil  actions  at  law,  Robertson 
V.  Perkins,  129  U.  S.  233;  U.  S.  v.  Parker,  120  U.  S.  94;  R.  R.  Co.  v. 
Horst,  93  U.  S.  291,  but  does  not  afTect  the  personal  conduct  or  admin- 
istration of  the  judge  in  the  discharge  of  his  separate  functions,  as 
with  respect  to  written  instructions  to  a  jury,  or  what  papers  may  be 
sent  to  the  jury  room,  or  his  discretion  in  granting  a  new  trial;  Nudd 
V.  Burrows.  91  U.  S.  441-2;  R.  R.  Co.  v.  Horst,  93  U.  S.  300:  or  the 
practice  in  the  supreme  court  or  the  circuit  courts  of  appeals,  .Andes 
V.  Slauson,  130  U.  S.  438;  In  re  Chateaugay  Iron  Co.,  128  U.  S.  553; 
Ky.  Life,  etc.,  Co.  v.  Hamilton,  63  Fed.  Rep.  93,  11  C.  C.  A.  47;  Lincoln 


56  SUITS   AT  LAW. 

V.  Power,  151  U.  S.  442;  Western  Union  Telegraph  Co.  v.  Aldridge, 
219  Fed.  836,  135  C.  C.  A.  506;  or  where  there  is  a  regulation  by  con- 
gress, Ex  parte  Fisk,  113  U.  S.  713;  Coffey  v.  U.  S.,  117  U.  S.  235;  Lan- 
caster V.  Keeler,  123  U.  S.  376;  or  where  the  form  of  writ  of  summons  is 
prescribed  by  the  district  court,  even  where  it  differs  from  the  state  pre- 
scribed form,  Shepard  v.  Adams,  168  U.  S.  618,  42  L.  Ed.  602;  or  to  em- 
power the  district  court  to  set  aside  its  judgment  after  the  term  in  which 
it  was  rendered,  although  the  state  statute  permits  such  setting  aside 
at  any  time  within  one  year,  Wellman  v.  Bethea,  213  Fed.  367;  or  where 
to  follow  the  state  statute  would  defeat  or  incumber  the  administra- 
tion of  the  law  under  federal  statutes.  Buckeye  Powder  Company  v. 
E.  I.  DuPont  de  Nemours  Powder  Company,  196  Fed.  514. 

In  Berry  v.  Mobile  and  Ohio  R.  R.  Co.,  228  Fed.  395,  it  is  said  that 
the  conformity  act  applies  only  in  the  absence  of  direct  legislation 
upon  a  subject  by  congress. 

A  summary  statement  of  the  application  of  the  conformity  act  is 
found  in  Hein  v.  Westinghouse  Air  Brake  Co.,  168  Fed.  766,  at  page 
769,  as  follows:  "Under  the  statute  and  decisions  the  following  rules 
may  be  stated:  The  conformity  act  (Rev.  St.,  Section  914)  provides 
that  in  cases  at  law  the  practice,  pleadings  and  forms  shall  conform, 
as  near  as  may-be,  to  the  practice,  pleadings  and  forms  in  like  causes 
in  the  state  courts.  (1)  The  practice  must  conform,  except  as  to 
matters  covered  by  congressional  legislation,  matters  of  jurisdiction, 
substituted  service  of  process,  charging  juries,  other  matters  relating 
to  the  personal  administration  of  the  judge,  joinder  of  legal  and 
equitable  remedies,  actions  in  rem,  etc.  (2)  The  federal  courts  may 
by  standing  rule,  change  subordinate  provisions  which  they  deem 
unsuited  to  their  procedure.  (3)  In  their  discretion  they  may  reject 
collateral  or  subordinate  provisions  of  the  state  practice,  pleadings  or 
forms,  which  tend  to  obstruct  the  administration  of  justice.  This 
they  may  do  in  a  particular  case,  presenting  unusual  features,  without 
making  any  standing  rule.  They  can  not  reject  the  local  system  as 
a  whole,  or  in  any  substantial  part;  but  they  may  dispense  with 
matters  of  technical  form,  not  affecting  substantial  rights  or  oper- 
ating to  the  prejudice  of  a  party.  They  can  not  change  the  local 
system  designed  to  produce  an  issue  of  law  or  fact,  but  they  are 
not  bound  to  slavishly  follow  subordinate  technical  requirements  of 
form,  when  justice  will  be  subserved  by  departing  from  them." 

In  preparing  pleadings  the  practitioner  must  consult  the  forms 
required  by  the  state  rules  of  pleading.  The  following  forms  are 
precedents  for  use  in  states  where  codes  have  been  adopted  as  well 
as  where  common  law  still  exists. 

The  attorney  will  also  keep  in  mind  the  rules  of  practice  in  the 
United  States  courts;  see  Dewhurst's  Rules  of  Practice  in  the  United 
States  Courts,  2d  Ed.,  Annotated. 


DECLARATIONS  AND   PETITIONS.  57 

No.  42. 

Declaration  against  Railway  Company  for  Damages  for  Per- 
sonal Injuries  from  Collision  of  Trains. 

[Caption.] 

Plaintiff,  a  citizen  of  the  state  of -,  sues  the  defendant, 

The   C.  &  D.    Railroad  Company,   a  corporation  organized 

under  the  laws  of  the  state  of ,  and  a  citizen  of  said  state, 

and  an  inhabitant  of  the  ,   district  of  ,   for  • 

dollars  damages,  for  this :     That  on  the  day  of  

plaintiff  was   on   a   train,   upon   defendant's   railroad,    going 

from  to  .     Both  on  the  line  of  said  railroad,  and 

while  so  upon  said  train,  and  going  from  said  station 

to station  as  aforesaid,  the  same  at  or  near  the  city  of 

,   collided  with   another  train  upon  said  road,   moving 

from  the  opposite  direction ;  and  that  plaintiff  in  said  collision 
and  by  reason  thereof  sustained  great  and  permanent  bodily 
injuries,  and  was  put  to  much  and  long  physical  and  mental 
suffering,  and  great  expense.  Plaintiff  avers  that  the  train 
upon  which  he  was  riding,  and  the  train  in  collision  therewith, 
as  aforesaid,  were  both  then  and  there  being  operated  by  the 
defendant,  and  were  under  its  control  and  management;  that 
plaintiff  was  rightfully  upon  said  train  at  the  tirne  of  said 
collision,  and  that  said  collision  was  caused  by,  and  resulted 
from  the  unlawful,  wrongful  and  negligent  acts  of  defendant, 
and  plaintiff  was  thereby  injured  as  above  stated,  without 
fault  upon  his  part,  therefore  he  sues  and  asks  a  trial  by  jury. 

R.  X., 
[Verification.']  Attorney  for  Plaintiff. 


No.  43. 

Petition  against  R.  R.  Co.  for  Personal  Injuries  to  an  Em- 
ployee (i). 

[Caption.] 

Now  comes  A.  B..  a  citizen  of  the  state  of ,  the  plaintiff 

herein,  and  for  his  cause  of  action  against  the  said  defendant. 


58 


SUITS  AT  J.AW. 


the  C.  D.  Ry.  Co.,  says,  that  the  defendant  is  a  railroad  cor- 
poration organized  under  the  laws  of  the  state  of ,  and 

controlling  and  operating  a  railroad  within  the  state  of  — — 

and  within  the  state  of . 

At  the  time  of  receiving  the  injuries  hereinafter  complained 
of,  the  plaintiff  was,  and  for  some  time  prior  thereto,  had  been, 
in  the  employ  of  the  defendant  as  a  brakeman  upon  its  freight 

trains.     On  or  about  the day  of ,  the  plaintiff,  under 

the  instructions  and  orders  of  the  defendant  through  its  rep- 
resentatives, was  engaged  in  the  performance  of  his  duties  as 
such  brakeman  upon  one  of  the  defendant's  freight  trains 
running.over  the  portion  of  the  defendant's  road  lying  between 

' and ,  in  the  state  of .     Upon  the  arrival  of  the 

said  train  at  Sanford,  a  station  upon  the  defendant's  said 
line  of  road,  it  became  and  was  the  plaintiff's  duty,  as  such 
brakeman,  under  the  orders  of  the  conductor  of  the  said 
freight  train,  to  assist  the  other  persons  engaged  in  operating 
said  train  in  removing  from  defendant's  switch,  or  side-track, 
at  said  station,  certain  cars  loaded  with  wood,  and  adding 
them  to  the  said  freight  train  then  standing  upon  the  defend- 
ant's main  track.  Plaintiff  says  that  the  locomotive  attached  to 
said  train  having  backed  down  upon  said  side-track,  and  coup- 
lings having  been  made  for  the  purpose  of  drawing  out  the 
said  cars  of  wood,  which  were  separated  from  said  locomotive 
by  a  box  car,  so-called,  the  said  locomotive  and  cars  then 
moved'  forward  toward  the  defendant's  main  track,  and  as 
the  same  were  approaching  the  said  main  track,  the  plaintiff, 
in  the  discharge  of  his  said  duties,  was  required  to  and  did 
descend  from  the  top  of  the  said  box  car,  on  which  he  had 
taken  his  position  for  the  purpose  of  giving  such  signals  as 
might  be  necessary  in  moving  said  cars;  that  as  he  was  de- 
scending on  the  rear  end  of  the  said  box  car  on  the  rungs,  or 
steps,  provided  for  such  purpose,  and  as  the  said  cars  were 
passing  a  pile  of  wood,  which  had  been  placed  close  to  the 
said  side-track,  a  portion  of  the  plaintiff's  body  having  ex- 


DECLAR.VTIOXS   AND   PETITIONS.  59 

tended  slightly  beyond  the  outer  edge  of  the  said  box  car,  the 
plaintiff  was  suddenly  struck  by  a  certain  piece  or  pieces  of  the 
wood  so  piled  along  said  track,  and  thereby  thrown  violently 
to  the  ground,  dragged  and  thrown  against  the  said  track,  and 
under  the  said  cars  of  wood,  thereby  sustaining  severe  in- 
juries as  hereinafter  more  specifically  set  forth. 

And  plaintiff  further  says  that  said  wood  had  been  care- 
lessly and  negligently  piled  upon  the  said  premises  of  the 
defendant  so  closely  to  the  defendant's  said  side-tracl<  that 
there  was  constant  danger  to  brakemen,  engaged  in  switching 
cars  upon  such  track,  of  being  injured  thereby;  that  it  had 
been  placed  in  such  position  by  the  permission  of  the  defendant 
several  months  prior  to  the  time  of  the  plaintiff's  receiving  his 
said  injuries ;  that  the  defendant  had  notice  and  knowledge  at 
the  time  such  wood  was  piled  upon  its  said  premises,  and 
shortly  thereafter,  that  the  same  was  carelessly  and  negli- 
gently piled  so  close  to  the  defendant's  said  side-track  that  the 
defendant's  employes,  discharging  duties  similar  to  those  de- 
volving upon  the  plaintiff,  were  in  constant  danger  of  being 
thrown  from  the  cars  moving  along  the  said  side-track;  that 
at  all  the  times  above  mentioned  the  premises  occupied  by  the 
said  pile  of  wood,  as  well  as  the  said  side-track,  cars  and  train, 
were  under  the  entire  control  and  supervision  of  the  said  de- 
fendant; that,  notwithstanding  such  facts,  such  premises  were 
by  the  defendant  permitted  to  be  and  continue  in  such  danger- 
ous condition;  that  at  and  prior  to  the  time  of  receiving  the 
injuries  herein  mentioned,  plaintiff  had  no  knowledge  what- 
soever of  the  dangerous  and  unsafe  condition  of  the  said 
premises,  or  of  the  fact  that  the  said  wood,  or  any  part  thereof, 
had  been  placed  so  near  the  said  side-track  that  the  plaintiff  in 
the  discharge  of  any  of  his  duties  as  such  brakeman,  would  be 
in  danger  of  coming  in  contact  with  any  portion  of  it;  that 
the  said  injuries  were  received  by  the  defendant  at  a  time 
when,  by  reason  of  darkness  and  a  prevailing  storm,  he  was 
unable  to  see  the  danger  to  which  he  was  exposed;  that  the 


60 


SUITS  AT  LAW. 


same  were  received  without  any  negligence  on  his  part,  and 
were  caused  solely  through  the  carelessness  and  negligence 
of  the  defendant  in  the  premises. 

Plaintiff  further  says,  that  when  he  was  thrown  as  afore- 
said under  the  said  cars,  and  against  said  track,  the  wheels  of 
the  said  cars  of  wood  passed  over  his  right  arm,  near  the 
shoulder,  so  fracturing  and  injuring  the  same  that  it  became 
necessary  to  amputate  said  arm  close  to  the  shoulder  joint; 
that  fit  the  same  time  plaintiff's  head  and  face  were  cut  and 
bruised  in  several  places  and  his  right  leg  severely  cut,  bruised 
'  and  lacerated  in  many  places,  his  back  strained  and  wrenched, 
suffering  thereafter  from  all  such  injuries  great  bodily  and 
mental  pain;  that,  as  a  consequence  of  such  injuries,  plaintiff 
was  confined  and  treated  at  a  hospital  for  a  period  of  five 
weeks,  incurring  thereby  large  expense  for  necessary  attend- 
ance and  treatment;  that,  on  account  of  his  said  injuries,  he 
has  been  incapacitated  from  work ;  that'  such  injuries  are  per- 
manent in  their  nature,  and  that  by  reason  of  the  premises  the 
plaintiff  has  sustained  damages  in  the  sum  of  $20,000.00.  • 

Wherefore,   plaintiff  prays   for  judgment  against   the  de- 
fendant in  the  sum  of  twenty  thousand  dollars. 

R.  X., 
Attorney  for  Plaintiff. 

[Verification.'] 

(i)   Taken   from  Flint  &   Pere   Marquette  R.   Co.  vs.   McPherson,   105 
Fed.  Rep.  210. 


No.  44. 

Petition  for  Damages  for  Personal  Injury  (i). 

[Caption.] 

Plaintiff  is  a  citizen  and  resident  of  the  state  of .  De- 
fendant is,  and  at  all  times  hereafter  stated,  was,  a  corporation 
created  by  and  organized  and  existing  under  the  laws  of  the 

state  of ,  and  a  citizen  and  resident  of  said  state,  and  an 

inhabitant  of  the  district  of  . 


DECLARATIONS  AND   PETITIONS.  61 

On  the day  of ,  the  city  of ,  in  the  state  of 

— ,  a  municipal  corporation  of  said  state,  did,  by  and 
through  its  city  council,  by  ordinance  duly  enacted,  grant  to 
The  M.  Railroad  Company  and  the  I.  Railroad  Company,  both 
corporations  created  by  and  organized  under  the  laws  of  said 
state,  and  owning  and  operating  railroads  in  said  city,  per- 
mission and  right  to  lay  down,  use  and  operate  with  cars  and 
locomotive  engines,  railway  tracks  upon  and  in  Water  street, 
Front  street  and  the  Public  Landing  of  said  city  from  Smith 
street  in  the  western  part  of  said  city  to  the  depot  of  the  said 
The  M.  Railroad  Company  in  the  eastern  part  of  said  city. 
Said  Water  street,  Front  street  and  said  Public  Landing  were 
then  and  there,  have  ever  since  been,  and  still  are,  public  high- 
ways, and  public"  commons  of  said  city  of and  state  of 

.     The  said  corporations  to  whom  said  grant  was  made, 

did  under  and  in  pursuance  thereof  lay  down  railroad  tracks 
upon  and  in  said  Water  street,  Front  street  and  said  Public 
Landing  extending  from  Smith  street  to  the  depot  of  said  The 
M.  Railroad  Company,  and  did  use  and  operate  the  same  with 
locomotive  engines  and  cars;  and  thereafter,  and  long  before 
the  committing  of  the  wrong  hereinafter  set  out,  said  The 
M.  Railroad  Company  did  lease,  let  and  demise  its  said  rail- 
way and  all  appurtenances,  including  said  tracks  laid  as  afore- 
said upon  and  in  said  public  highways  and  public  commons, 
to  the  defendant  The  P.  Railway  Company,  for  a  term  yet 
unexpired ;  and  thereafter,  and  at  all  times  hereinafter  stated, 
and  until  the  present  time,  the  defendant  has  possessed,  used 
and  operated,  and  does  now  possess,  use  and  operate,  with 
locomotive  engines  and  cars,  said  railway  including  said 
tracks  laid  as  aforesaid  upon  and  in  said  public  highways,  and 
public  commons,  under  and  in  virtue  of  the  ordinance  afore- 
said and  not  otherwise.  Said  ordinance,  under  and  in  virtue 
of  which  said  tracks  were  laid  and  were  and  are  used  and 
operated  as  aforesaid  upon  and  in  said  public  highways  and 
public  commons,  provided  among  other  things,  as  follows: 


62  st;its  at  law. 

"  The  hours  which  said  track  may  be  used  for  the  transmis- 
sion of  freight  and  passengers  shall  be  as  follows :  From 
the  1st  of  April,  to  the  ist  of  October,  from  8  o'clock  p.  m.  to 
6  o'clock  a.  m.,  and  from  the  ist  of  October  to  the  ist  of  April 
from  7  o'clock  p.  m.  to  6  o'clock  a.  m.,  and  no  cars  shall  be 
drawn  on  the  track  at  any  other  hours.  The  companies  to 
have  the  privilege  of  using  the  steam  or  horse  power,  as  they 
may  in  their  judgment  think  best;  subject,  however,  to  the 
approval  of  the  city  council.  But  in  no  case  shall  cars  be 
drawn  through  the  city  at  a  greater  speed  than  six  miles  per 
hour." 

Said  ordinance  is,  and  ever  since  the  date  of  its  passage 
aforesaid  has  been,  unrepealed,  unmodified  and  in  full  force 
and  effect. 

On  the  day  of ,  at  the  hour  of  six  o'clock  and 

fifty  minutes  a.  m.,  H.  H.  was  upon  said  public  highways  and 
public  commons,  viz. :  said  public  landing  and  said  Water 
street,  between  Smith  street  and  the  depot  of  said  The  M. 
Railroad  Company,  and  between  Main  and  Sycamore  streets 
of  said  city  —  with  a  heavily  loaded  wagon  drawn  by  two 
horses.  Said  H.  H.  was  then  and  there  the  driver  of  said 
horses  and  was  in  charge,  possession  and  control  of  them  and 
said  wagon,  he  being  then  thereunto  employed  and  hired,  for 
reward,  as  their  servant,  by  the  owners  thereof.  And  then 
and  there,  while  said  H.  H.  was  so  upon  said  public  highways 
and  public  commons  with  said  horses  and  wagon,  the  defend- 
ant, at  the  hour  of  six  o'clock  and  fifty  minutes  a.  m.,  of  said 

day,  the  day  of  ,  did  wrongfully,  unlawfully  and 

with  gross  and  wanton  negligence  drive,  run  and  operate  a 
locomotive  engine  and  train  of  freight  cars  upon,  over  and  in 
said  public  highways  and  public  commons,  viz. :  said  Public 
Landing  and  Water  street,  between  said  Smith  street  and  said 
depot  of  said  The  M.  Railroad  Company,  and  upon  and  over 
the  said  track  there  aforesaid  laid  and  maintained  under  and 
in  virtue  of  said  ordinance.     Said  locomotive  engine  and  cars 


DECLARATIONS  AND   PETITIONS.  63 

were  so  driven,  run  and  operated  by  defendant  with  much 
noise  and  at  a  greater  rate  of  speed  than  six  miles  per  hour. 
And  then  and  there,  by  said  wrongful,  unlawful  and  negligent 
driving,  running  and  operating  of  said  locomotive  engine  and 
cars,  said  horses  drawing  said  wagon  were  much  frightened, 
and  were  caused  to  become  unmanageable,  and  were  caused 
to  run  away  with  said  wagon,  and  were  caused  to  knock  down 
and  throw  violently  to  the  ground  said  H,  H.,  and  were  caused 
to  run  and  draw  said  heavily  loaded  wagon  to  which  they  were 
attached,  upon  and  over  the  body  of  said  H.  H.,  whereby  said 
H.  H.  was  so  injured  in  his  person  that  he  soon  thereafter  died 
thereof. 

Said  H,  H.  left  one  Elizabeth  H.,  his  widow,  surviving  him, 
and  also  John  H.  aged  27  years,  Richard  H.  aged  24  years, 
William  H.  aged  19  years,  Louis  H.  aged  16  years,  Lillie  A. 
H.  aged  10  years  and  Ella  H.  aged  7  years,  his  only  children 
and  next  of  kin,  which  widow  and  four  last-named  children 
were  dependent  on  him  for  support,  and  said  four  last-named 
children  were  dependent  on  him  for  education  also,  and  all  of 
whom  have  been  otherwise  injured  by  the  death  of  said  H.  H. 
to  the  amount  of  ten  thousand  ($10,000.00)  dollars. 

Thereafter,  on  the day  of ,  plaintiff  was  in  and  by 

the  county  court  of county,  in  the  state  of  ,  the 

county  and  state  wherein  said  H.  H.  was  domiciled,  and  of 
which  he  was  a  citizen  and  resident  at  the  time  of  his  death  — 
duly  appointed,  and  he  did  on  that  day  duly  qualify,  as  admin- 
istrator of  the  estate  of  said  decedent.     Under  and  by  the  laws 

of  the  state  of ,  said  county  court  had  jurisdiction,  power 

and  authority  to  grant  administration  upon  the  estate  of  de- 
ceased persons. 

Wherefore  plaintiff  as  such  administrator,  prays  judgment 
against  defendant  for  ten  thousand  ($10,000.00)  dollars  and 
costs.  R.  X., 

Attorney  for  Plaintiff. 

(i)  Taken  from  P.  C.  C.  &  St.  L.  R.  Co.  vs.  Hood,  94  Fed.  Rep.,  61Z, 
36  C.  C.  A.  423- 


64  SUITS   AT   LAW. 

No.  45. 

Verification  by  Corporation  Officer. 

State  of  New  York,       ^ 
County  of  New  York,    v  ss. : 
City  of  New  York,  j 

A.  D.  Chambers,  being  duly  s^vorn,  deposes  and  says :  That  he 
is  the  secretary  and  treasurer  of  the  above  named  petitioner, 
The  Delaware,  Lackawanna  and  Western  Railroad  Company ;  that 
he  has  read  the  foregoing  petition  and  that  it  is  true  of  his  own 
knowledge,  except  as  to  the  matters  therein  stated  to  be  alleged 
on  information  and  belief  and  that  as  to  those  matters  he  believes 
it  to  be  true. 

That  the  reason  why  this  petition  is  not  verified  by  the  peti- 
tioner, is  that  it  is  a  foreign  corporation,  and  that  deponent  is  an 
officer  thereof  as  aforesaid ;  that  the  sources  of  deponent's  knowl- 
edge and  the  grounds  of  his  belief  as  to  all  the  matters  therein 
not  stated  to  be  on  knowledge,  are  statements  and  reports  re- 
ceived from  officers  and  agents  of  defendant,  having  in  charge 
the  matters  referred  to  in  said  petition. 

A.  D.  CHAMBERS. 
Subscribed  and  sworn  to  before  me  this  21st  day  of  May,  1913. 

Joseph  Fiell, 
[Seal.]  Notary  Public,  No.  1077, 

New  York  County. 


No.  46. 

Verification  of  Complaint  by  Testamentary  Guardian. 

[Caption  and  Venue.] 

Garland  A.  Thomason  being  duly  sworn,  says  that  he  has  read 
the  foregoing  complaint,  that  the  same  is  true  to  the  knowledge 
of  affiant,  except  as  to  those  matters  stated  therein  on  information 
and  belief,  and  as  to  those  matters,  he  believes  it  to  be  true. 


DECLARATIONS  AND  PETITIONS.  65 

Affiant  further  swears  that  he  is  the  testamentary  guardian, 
as  set  forth  in  the  complaint,  and  the  authorized  agent  of  the 
plaintiff;  that  the  material  allegations  of  the  complaint  are  all 
within  the  personal  knowledge  of  affiant ;  that  affiant  was  present 
at  the  trial  in  the  United  States  court  at  Ashville,  of  the  case  of 
Ernest  Thomason  v.  The  Southern  Railway  Company,  in  which 
all  of  the  facts  of  plaintiff's  injury  as  set  forth  in  the  complaint, 
were  testified  to  by  the  witnesses  on  said  trial ;  and  that  affiant 
of  his  own  knowledge  is  acquainted  with  most  of  the  facts  and 
circumstances  as  to  the  plaintiff's  injury  as  described  in  the  said 
complaint ;  that  this  complaint  is  not  verified  by  the  plaintiff, 
Ernest  Thomason,  for  the  reason  that  he  is  a  minor  and  now  in  a 
hospital  in  the  state  of  Pennsylvania,  where  he  is  undergoing 
treatment  on  account  of  the  injury  described  in  the  complaint. 

GARLAND  A.  THOMASON. 


No.  47. 

Declaration    in    Tort    for    Carrier's    Negligence — in    Massa- 
chusetts. 

[Captioii.] 

CouxT  1.  Tort:  And  the  plaintiff  says  that  .she  is  a  citizen 
of  Chevy  Chase  in  the  county  of  Montgomery,  and  the  state  of 
Maryland,  and  that  the  defendant  is  a  corporation  and  a  citizen 
of  Boston  in  the  county  of  Suffolk,  and  commonwealth  of  Massa- 
chusetts. 

And  the  plaintiff  says  that  the  defendant  is  a  corporation  duly 
organized  under  the  laws  of  the  commonwealth  of  Massachusetts, 
operating  and  controlling  an  electric  railway  in  and  about  the  city 
of  Boston  as  a  common  carrier  of  passengers,  and  was  acting  as 
such  at  all  times  hereinafter  set  forth :  that  on  or  about  the 
twenty-third  day  of  August,  A.  D.  1914,  the  plaintiff  was  accepted 
by  the  defendant  company,  by  its  agents,  servants  and  employes, 
as  a  passenger  for  hire  at  the  Park  Street  station  of  the  Boston 
subway  so. called,  controlled  and  maintained  by  said  defendant 


66  SUITS  AT  LAW. 

company  in  the  operation  of  said  railway;  that  on  said  day  the 
plaintiff  entered  upon  the  platform  of  the  said  station  to  wait  for  a 
southbound  car,  and  that  the  car  which  the  plaintiff  desired  to 
board  entered  said  station  and  came  to  a  stop  opposite  a  stopping 
place;  that  the  plaintiff  walked  across  the  platform  towards  the 
said. car,  but  when  close  to  it  and  before  she  could  get  aboard  the 
same,  the  defendant  company,  by  its  agents,  servants  and  em- 
ployes, negligently,  carelessly  and  without  right  restarted  the  said 
car  and  moved  it  along  said  platform  to  another  stopping  place 
where  it  again  came  to  a  stop ;  that  the  plaintiff  followed  along 
the  platform  close  to  said  car  to  the  place  where  said  car  had 
again  stopped,  intending  to  board  it,  but  the  defendant  company, 
by  its  agents,  servants  and  employes,  being  under  a  duty  to  trans- 
port the  plaintiff  safely  over  its  line,  and  to  provide  safe  and 
suitable  means  of  ingress  to  said  car,  wholly  regardless  of  said 
duty  to  said   plaintiff  in   that  behalf,   and  in  violation  thereof, 
negligently,  carelessly  and  without  right  stopped  its  car  on  a  curve 
at  said  last  stopping  place  in  such  a  position  that  there  was  a 
wide,  unsafe  and  improper  space  between  the  edge  of  the  platform 
at  said  station  and  the  running  board  of  said  car  at  the  point 
which  the  plaintiff  was  about  to  get  aboard;  that  the  plaintiff  was 
at  said  time  unfamiliar  with  said  station,  and  by  reason  of  the 
stopping  and  negligent  restarting  of  said  car  before  making  it 
stop  on  the  curve  at  said  station  as  aforesaid,  the  plaintiff  was 
induced  to  go  along  said  platform  to  said  stopping  place  on  said 
curve,  and  in  attempting  to  board  the  said  car,  because  of  said 
inducement  and  because  of  the  fact  that  the  defendant  company, 
by  its  agents,  servants  and  employes  so  negligently  left  unpro- 
tected said  space  by  stopping  said  car  in  said  position  on  said 
curve,  and  because  of  lack  of  warning  by  said  defendant  com- 
pany, by   its   agents,   servants   and   employes   as  aforesaid,   the 
plaintiff  fell  into  said  space;  that  the  plaintiff  was  at  all  times 
aforesaid  in  the  exercise  of  due  care  and  diligence,  but  that  by 
reason  of  the  negligence  of  the  defendant  company,  by  its  agents, 
servants  and  employes  as  aforesaid,  she  sustained  severe  and  per- 
manent injuries  to  her  hip,  leg,  back  and  body,  and  has  suffered, 
and  still  continues  to  suffer  great  pain  and  anguish  in  body  and 
mind  and  has  incurred  great  expense  for  medical  treatment. 


DECLARATIONS  AND  PETITIONS.  67 

Wherefore  the  plaintiff  prays  damages  against  this  defendant 
in  the  sum  of  fifteen  thousand  dollars  ($15,000)  as  set  forth  in 
her  writ. 

Count  2.  Tort:  .\nd  the  plaintiff  says  that  she  is  a  citizen  of 
Chevy  Chase  in  the  county  of  Montgomery,  and  state  of  Mary- 
land, and  that  the  defendant  is  a  corporation  and  a  citizen  of 
Boston,  county  of  Suffolk,  and  commonwealth  of  Massachusetts. 

And  the  plaintiff  says  that  the  defendant  is  a  corporation  duly 
organized  under  the  laws  of  the  commonwealth  of  Massachusetts, 
operating  and  controlling  an  electric  railway  in  and  about  the  city 
of  Boston  as  a  common  carrier  of  passengers,  and  was  acting  as 
such  at  all  times  hereinafter  set  forth ;  that  on  or  about  the  twenty- 
third  day  of  August,  A.  D.  1914,  the  plaintiff  was  accepted  by  the 
defendant  company,  by  its  agents,  servants  and  employes,  as  a 
pasenger  for  hire  at  the  Park  Street  station  of  the  Boston  subway 
so-called,  controlled  and  maintained  by  said  defendant  company  in 
the  operation  of  said  railway ;  that  the  said  defendant  company 
used  the  said  station  at  all  times  as  a  stopping  place  for  a  greater 
number  of  cars  than  the  platform  was  built  to  accommodate,  so 
that  the  first  stopping  place  of  said  cars  at  said  station  was  then 
and  there  regularly  located  on  a  curve  in  the  track  and  platform 
of  said  station;  that  on  said  day  the  plaintiff  entered  upon  said 
platform  to  wait  for  a  southbound  car ;  that  the  car  which  the 
plaintiff  desired  to  board  entered  into  the  said  station  and  came 
to  a  stop  opposite  a  stopping  place ;  that  the  plaintiff  walked 
across  the  platform  towards  said  car  and  was  close  to  it,  but 
before  she  could  get  aboard  the  same  the  defendant  company, 
by  its  agents,  servants  and  employes,  negligently,  carelessly  and 
■without  right  restarted  the  said  car  and  moved  it  along  said  plat- 
form to  said  stopping  place  known  as  Number  one  (1),  where  it 
again  came  to  a  stop ;  that  the  plaintiff  followed  along  the  plat- 
form to  where  the  car  had  again  stopped,  intending  to  board  it, 
but  the  defendant  company,  by  its  agents,  servants  and  employes, 
being  under  a  duty  to  transport  the  plaintiff  safely  over  its  line, 
and  to  provide  safe  and  suitable  means  of  ingress  to  its  cars,  but 
wholly  regardless  of  said  duty  to  the  said  plaintiff  on  that  behalf, 
and  in  violation  thereof,  negligently,  carelessly  and  without  right 


68  SUITS   AT   LAW. 

stopped  its  car  on  said  curve  at  said  stopping  place  numbered 
one  (1)  in  such  a  position  that  there  was  a  wide,  unsafe  and 
improper  space  between  the  edge  of  the  platform  at  said  station 
and  running  board  of  said  car  at  the  point  where  the  plaintiff 
was  about  to  get  aboard  the  same  ;  that  the  plaintiff  was  a  stranger 
in  Boston  and  unfamiliar  with  said  station,  and  by  reason  of  the 
stopping  and  negligent  restarting  of  said  car  before  stopping  on 
said  curve  on  place  Num])er  one  (1)  aforesaid,  the  plaintiff  was 
induced  to  go  along  the  said  platform  to  said  stopping  place  on 
said  curve  and  in  attempting  to  board  said  car,  because  of  said 
inducement  and  on  account  of  the  fact  that  the  defendant  so  neg- 
ligently left  such  space  unprotected  by  stopping  said  car  in  said 
position  on  said  curve  and  without  warning  to  the  plaintiff  by  the 
defendant  company,  its  agents,  servants  and  employes  aforesaid, 
the  said  plaintiff  fell  into  said  space  whereby  the  plaintiff  sus- 
tained severe  injuries  to  her  hip,  leg,  back  and  body,  and  has 
suffered  and  still  continues  to  suffer  great  pain  and  anguish  in 
body  and  mind  and  has  incurred  great  expense  for  medical 
treatment. 

Wherefore,  the  plaintiff  prays  damages  against  the  said  defend- 
ant in  the  sum  of  fifteen  thousand  dollars  ($15,000)  as  set  forth 
in  her  writ. 

Counts  one  (1)  and  two  (2)  are  for  one  and  the  same  cause 
of  action. 

By  her  Attorneys, 

A.  B., 
C  D. 


DECLARATIONS  AND  PETITIONS.  69 

No.  48. 

Declaration  by  a  Minor  by  His  next  Friend  for  Damages  for 
Personal  Injury. 

[Caption.] 

First  Count:     The  plaintiff,  who  is  a  minor,  a  citizen  of 

the  ,   state  ,   sues  by  his  next   friend,   S.   B.,   who 

is  a  widow,  and  unmarried,  and  a  citizen  of  the ,  state  of 

,    sues   the   defendant    for   twenty-five   thousand   dollars 

damages  for  this:  Plaintiff  avers  that  he  is  a  minor  about  12 
years  of  age;  that  his  father  is  dead,  and  that  he  sues  by  his 
mother,  S.  B.,  who  is  a  widow  and  unmarried.  Plaintiff 
avers  that  the  defendant  is  a  corporation  duly  incorporated 

under  the  laws  of  the ,  state  of ,  and  owns  a  line  of 

railroad  in  and  through  the  states  of ,  ,  ,  

and  ,   and  that  it  has  main  railroad  track  and   switch 

tracks  along  and  upon  which  the  said  defendant  corporation 
runs  and  operates  passenger  and   freight  cars,   propelled  by 

steam  locomotive  engines.     Plaintiff  avers  that  upon  the 

day  of ,  that  he  was  rightfully,  legally  and  lawfully  upon 

a  certain  wagon  which  was  being  driven  on  and  along  a  public 
dirt  road,  to  wit,  the  state  line  road,  which  runs  east  and  west 

along  the  state  line  between and ,  and  plaintiff  avers 

that  the  state  line  dirt  road  crosses  the  main  track  and  line  of 
road  belonging  to  the  said  defendant  railroad  company  and 
certain  switch  tracks  of  and  belonging  to  said  railroad  com- 
pany at  or  near  Fulton.  And  the  plaintiff  avers  that  while  he 
was  so  legally,  lawfully  and  rightfully  on  said  wagon  which 
was  being  driven  rightfully,  legally  and  cautiously  on  and 
along  said  state  line  dirt  road  and  that  when  the  said  wagon 
being  so  driven  approached  and  got  near  to  where  said  dirt 
road  crossed  said  main  track  and  switch  tracks  of  said  defend- 
ant railroad  company,  the  said  road  was  so  unobstructed  by 
any  cars  or  engines  of  and  along  said  defendant  railroad  com- 
pany that  it  appeared  prudent  and  safe  for  the  said  wagon  to 
be  driven  on  and  along  said  dirt  road  and  across  said  main 


70  SUITS  AT  LAW. 

switch  track  and  dirt  road  or  highway.  And  plaintiff  avers 
that  while  said  team  drawing  and  pulling  said  wagon  was  in 
the  manner  aforesaid  being  driven  rightfully  across  one  of  the 
switch  tracks  of  and  belonging  to  said  defendant  railroad  com- 
pany at  or  near  South  Fulton,  that  a  certain  car  or  certain 
cars  which  were  then  on  said  switch  tracks  was  by  locomotive 
engine  managed  and  operated  and  was  then  being  run  or  con- 
trolled by  certain  agents,  employes  and  servants  of  the  de- 
fendant railroad  company,  carelessly,  negligently,  recklessly 
and  unlawfully  pushed  or  backed  violently  on  and  against  the 
said  wagon  upon  which  plaintiff  was  then  and  there  riding 
and  the  plaintiff  was  then  and  there  by  reason  of  said  wrong- 
ful, unlawful,  careless,  reckless  act  or  acts,  upon  the  part  of 
said  agents,  servants  and  employes  of  the  said  defendant  rail- 
road company,  knocked  or  thrown  violently  from  the  said 
wagon,  and  on  or  near  the  rails  upon  which  said  cars  or  car 
or  engine  were  moving,  and  the  plaintiff  was  then  and  there 
and  in  the  state  of  Tennessee,  negligently  and  carelessly  and 
recklessly  run  on,  against  and  over  by  certain  wheel  or  wheels 
of  one  or  more  of  the  said  cars  and  plaintiff  was  then  and 
there  greatly  damaged,  to  wit,  both  of  plaintiff's  legs  were  then 
and  there  by  the  said  cars  or  wheels  thereof  bruised,  crushed, 
mangled  and  broken  and  it  became  and  was  necessary  to  have 
both  of  said  legs  cut  off  and  amputated,  and  both  of  plaintiff's 
legs  were  necessarily  amputated  to  save  the  life  of  plaintiff. 
Plaintiff  avers  that  he  suffered  great  mental  anguish  and  physi- 
cal pain  and  that  he,  plaintiff,  lost  his  said  legs  and  was  ren- 
dered a  cripple  for  life,  and  unable  to  earn  wages  and  make 
a  living.  Plaintiff  avers  that  at  the  place  where  said  state  line 
dirt  road  crosses  the  said  main  railroad  track  and  switch  tracks 
of  the  defendant  railroad  company  is  a  public  place  and  it 
is  necessary  to  cross  the  same  by  citizens  and  travelers  who 
wish  to  travel  on  and  along  said  state  line  dirt  road  and  high- 
way at 'and  along  said  point.  Plaintiff  avers  that  when  said 
wagon  being  driven  across  the  said  main  railroad  track,  that 


DECLARATIONS  AND    PETITIONS.  71 

while  and  at  the  time  it  was  crossing  one  of  the  switch  tracks 
of  and  belonging  to  said  defendant  company  that  a  certain  car 
or  certain  cars  which  were  on  said  switch  track,  was  or  were 
by  the  agents  and  employes  of  the  defendant  railroad  com- 
pany, managing  and  operating  a  certain  locomotive  engine 
being  pushed  or  backed  negligently,  carelessly  and  recklessly 
on  and  against  the  wagon  on  which  the  plaintiff  was  riding 
and  the  plaintiff  was  by  said  wrongful,  negligent  and  careless 
acts,  thrown  violently  from  said  wagon  onto  or  near  the  track 
or  rail  of  said  switch  track,  upon  which  said  car  or  cars  and 
locomotive  engines  were  moving  and  was  wrongfully  and 
negligently,  carelessly  and  recklessly  run  over  and  against  by 
the  wheel  or  wheels  of  one  of  the  said  cars,  when  and  whereby 
both  of  plaintiff's  legs  were  broken,  crushed  and  mangled,  and 
it  became  and  was  necessary  to  have  both  the  plaintiff's  legs 
amputated  or  cut  off  and  both  of  said  legs  were  cut  off  for  the 
purpose  of  saving  the  life  of  the  plaintiff,  greatly  to  plaintiff's 
damage,  and  plaintiff  avers  that  he  suffered  great  mental  an- 
guish, anxiety  and  suffered  great  physical  pain,  and  suffering 
and  anguish  to  plaintiff's  damage  in  all  twenty-five  thousand 
dollars,  wherefore  he  sues  and  demands  a  jury  to  try  the  is- 
sues to  be  joined  and  assess  his  damage. 

R.  X., 
Attorney  for  Plaintiff. 


No.  49. 

Petition  by  an  Administrator  for  Damages  for  Death  at  a 

R.  R.  Crossing. 

[Caption.] 

Now  comes  the  plaintiff  S.  B.,  a  citizen  of  the ,  state  of 

,  and  avers  that  he  is  the  duly  appointed,  qualified  and 

acting  administrator  of  the  estate  of  E.  F.,  deceased;  and  was 

so  duly  appointed  by  the  probate  court  of county,  in  the 

state  of ,  by  letters  of  administration  on  said  estate  duly 

issued  to  him  thereby;  and  the  defendant,  The  C.  &  D.  Rail- 
road Company,  is  a  corporation  duly  organized  under  the  laws 


72 


SUITS   AT  LAW. 


of  the  state  of and  is  engaged  in  conducting  and  operat- 
ing a  public  railroad  in township,  in  the  county  of  — ^-, 

state  of ,  and  was  so  engaged  on ;  that  in  said  town- 
ship there  is  a  certain  railroad  crossing,  known  as  McCul- 
lough's  Crossing,  at  which  place  there  is  a  flag  station  on  the 
line  of  the  defendant's  railroad,  kept  and  maintained  by  it  in 
connection  with  The  Southern  Railway  Company,  the  track 
of  which  last  named  company,  at  that  point,  and  for  some 
distance  north  and  south  therefrom,  is  parallel  with  and  im- 
mediately adjoining  the  track  of  defendant  company ;  that  on 

the  said  day  of ,  at  about  6  o'clock  a.  m.,  as  said 

E.  F.  was  about  to  pass  over  the  track  of  said  defendant  at 
said  crossing,  exercising  due  care  on  his  part,  he  was  struck 
by  a  locomotive  of  the  defendant,  running  southerly  upon  the 
track  of  defendant,  and  so  injured  that  he  died  soon  there- 
after. 

Plaintiff  says  that  said  locomotive  was  being  run  and  oper- 
ated at  an  extremely  high  rate  of  speed,  to  wit,  about  fifty 
miles  per  hour,  and  that  no  bell  was  rung,  nor  whistle  sounded 
as  said  locomotive  approached  said  crossing;  that  there  was 
a  sharp  down  grade  at  that  point  and  for  some  distance  north- 
wardly therefrom,  and  said  locomotive  was  quietly  running, 
by  its  own  momentum,  and  that  of  the  cars  attached  thereto, 
constituting  a  passenger  train ;  that  the  same  was  about  thirty 
minutes  behind  its  schedule  time,  and  that  no  warning  or  sig- 
nal of  its  approach  was  given  as  it  approached  said  crossing 
and  passed  over  the  same. 

Plaintiff  says  further  that  said  decedent  approached  said 
crossing  and  was  about  to  cross  over  the  track  of  the  defend- 
ant company,  there  was  a  heavily  loaded  freight  train  with  a 
locomotive  at  each  end  thereof,  going  to  the  north  upon  the 
track  of  the  Lake  Shore  Railway,  immediately  alongside  of 
and  parallel  with  the  track  of  the  defendant,  which  was 
known  to  the  defendant's  agents  in  charge  of  said  train,  and 
the  noise  occasioned  thereby  was  such  that  decedent  was  pre- 


DECLARATIONS  AND   PETITIONS.  73 

vented  from  hearing  and  was  unable  to  hear  the  approach  of 
the  train  running  southwardly  upon  the  track  of  defendant, 
already  mentioned,  and  that  at  said  crossing  and  northwardly 
therefrom  there  was  a  dense  fog  which  obstructed  decedent's 
view  of  the  approaching  train  upon  defendant's  track,  and 
prevented  him  from  seeing  the  approach  of  said  train  thereon. 

Plaintiff  says  that  said  E.  F.  was  rightfully  upon  said 
crossing,  which  had  been  used  as  such  for  many  years,  all  of 
which  was  known  to  said  defendant,  and  exercised  due  care  in 
entering  upon  and  attempting  to  pass  over  the  same ;  that  the 
defendant  was  negligent  in  failing  to  give  any  signal  or  warn- 
ing of  the  approach  of  said  locomotive  and  train,  and  in  fail- 
ing and  neglecting  to  keep  any  lookout  for  pedestrians  upon 
and  at  said  crossing,  and  in  failing  and  neglecting  to  stop 
said  train  or  to  slacken  its  speed  when  it  knew  that  said  cross- 
ing was  in  constant  use  by  pedestrians,  the  same  having  been 
provided  and  maintained  by  it  for  that  purpose,  and  when 
it  knew  that  the  view  of  the  approaching  train  which  collided 
with  decedent  was  obstructed  by  the  fog  so  that  the  same 
could  not  be  seen  by  decedent,  in  passing  over  said  crossing, 
and  knew  that  the  train  upon  the  track  of  the  Southern  Rail- 
road was  passing  said  crossing  as  it  approached  the  same. 

Plaintiff  says  that  said  E.  F.,  at  the  time  of  his  death, 
was  of  the  age  of  thirty-one  years,  was  sober  and  industrious, 
and  was  capable  of  earning,  and  was  earning  two  dollars  per 
day;  that  he  left  surviving  him  Rachel  F.,  his  widow,  and 
May  F.  and  Viola  F.,  his  only  children  and  heirs  at  law,  said 
children  being  minors,  for  whose  benefit  this  action  is  brought. 

Plaintiff  says  that  by  reason  of  the  negligence  of  the  de- 
fendant,   as   herein   alleged,    said   widow   and   children   have 

been  damaged  in  the  sum  of dollars  ($ ),  for  which 

amount  judgment  is  asked.  R.  X., 

Attorney  for  Plaintiff. 


74 


SUITS   AT   LAW. 


No.  50. 


Petition  against  Receivers  for  Damages  for  Ejectment  from 
Railway  Train. 

[Caption.] 

The  plaintiff,  A.  B.,  says  that  he  is  a  resident  of county, 

state  of ,  and  that  the  C.  &  D.  Railroad  Company  is  a  cor- 
poration incorporated  under  the  laws  of  the  state  of  . 

The  plaintiff  says  that  said  corporation  has  constructed  a  rail- 
road across  the  state  of  ,  and  that  its  said  road  runs 

through  the  village  of and  the  city  of in  said  state. 

This  plaintiff  says  that  K.  C  and  O.  G.  are  the  duly  and 
legally  appointed,  qualified  and  acting  receivers  of  said  rail- 
road company ;  that  the  said  receivers,  defendants,  were  at  the 
time  herein  complained  of,  and  are  now,  operating  said  rail- 
road, and  said  road  so  operated  by  them,  as  receivers,  was 

on  the  day  of  ,   a  common  carrier   for  hire  of 

passengers  and  their  baggage  over  its  said  line  of  railway. 

That  prior  to  the  day  of  ,   this  plaintiff  had 

purchased  a  certain  book  of  mileage  tickets,  being  Book  No. 
3370,  issued  to  him  by  the  E.  &  F.  Railway  Company,  at  its 
office  in  the  city  of ,  state  of . 

Plaintiff  avers  that  he  was  then  and  there  the  lawful  owner 
and  possessor  of  said  book  of  mileage  tickets,  and  that  said 
mileage  tickets  in  said  book  entitled  him  to  passage  over  said 
road  operated  by  said  defendants. 

Plaintiff  says  that  on  the  above  named   day  he  boarded 

a  train  of  said  defendant  road  at  Station,  ,  bound 

for ,  a  station  on  said  road  in  said  state,  and  having  com- 
plied with  all  the  conditions  attached  to  his  contract  of  passage 
on  said  mileage  ticket  book,  he  presented  said  mileage  ticket 
in  said  book  to  he  defendants'  agent  and  conductor  of  said 
train  for  payment  of  his  passage  to  his  said  place  of  destina- 
tion. 

Plaintiff  avers  that  said  defendants'  agent  and  conductor 
refused  to  accept  said  mileage  ticket  for  passage  on  said  train. 


OECLAR\TTOXS  AND  PETITIOXS.  75 

Plaintiff  avers  that  in  the  presence  of  the  passengers  of  said 
train  said  defendants'  agent  and  conductor,  while  acting  in 
the  discharge  of  his  duties  as  said  agent  and  conductor,  ac- 
cused this  plaintiff  of  riding  on  a  bogus  mileage  book,  and  as- 
saulted this  plaintiff,  and  threatened  to  put  him  off  the  train 
unless  he  paid  the  fare  to  the  place  of  destination,  which  this 
plaintiff  then  and  there  refused,  whereupon  said  defendants' 
agent  and  conductor  of  said  train  ejected  this  plaintiff  from 
the  train  in  the  presence  of  divers  persons,  to  his  great  injury, 
and  to  his  damage  in  the  sum  of dollars  ($ ). 

Wherefore,  plaintiff  asks  a  judgment  against  the  defend- 
ants for  the  sum  of dollars  ($ ). 

R.  X., 

[Verification.]  Attorney  for  Plaintiff. 


No.  51. 

Petition  to  Recover  on  Township  Bonds. 

[Caption.'\ 

The  plaintiff.  The  Brattleboro  Savings  Bank,  is  a  corpora- 
tion organized  under  the  laws  of  the  State  of  Vermont,  and  is 
a  citizen  of  the  said  State  of  Vermont. 

The  defendant  is  the  board  of  township  trustees  of  Hardy 
Township,  a  civil  township  in  Holmes  County,  Ohio,  organ- 
ized and  existing  under  and  by  virtue  of  the  laws  of  Ohio, 
and  within  the  Northern  District  of  Ohio,  Eastern  Division, 
ist  Cause  of  Action. 

Paragraph  i.  Heretofore,  to  wit,  on  the  fourth  day  of 
February,  A.  D.  1893,  the  defendant  duly  executed,  sold  and 
delivered  twenty  (20)  certain  negotiable  coupon  refunding 
bonds  of  said  Hardy  Township,  of  the  denomination  of  one 
thousand  dollars  ($1,000.00)  each,  numbered  consecutively 
from  No.  i  to  No.  20,  both  inclusive,  bearing  date  of  Feby. 
4th,  1893,  and  to  become  due  and  payable  as  follows: 

Bond  No.  I,  for  the  sum  of  one  thousand  dollars,  on  July 
1st,  1898. 


76 


SUITS   AT  LAW. 


Bond  No.  2,  for  the  sum  of  one  thousand  dollars,  on  July 
1st,  1899,     [Set  out  other  bonds  in  like  manner.] 

Each  of  said  bonds  was  made  to  bear  interest  at  the  rate  of 
six  (6)  per  cent  per  annum,  payable  semi-annually  on  the  first 
day  of  January  and  the  first  day  of  July  in  each  year,  and  the 
said  several  payments  of  interest  to  accrue  upon  said  bonds  to 
the  maturity  thereof,  respectively,  were  evidenced  by  interest 
coupons  attached  to  said  bonds,  respectively,  both  principal 
and  interest,  to  be  payable  by  said  defendant,  as  the  same 
should  become  due,  at  the  township  treasurer's  ofiice  of  said 
Hardy  Township,  at  Millersburg,  Ohio. 

Said  bonds  were  so  issued  under  and  by  authority  of  an  act 
of  the  General  Assembly  of  the  State  of  Ohio,  entitled,  "An 
\ct  to  authorize  the  trustees  of  Hardy  Township,  in  Holmes 
County,  Ohio,  to  issue  and  sell  the  bonds  of  said  township,  for 
the  purpose  of  paying  off  and  satisfying  the  present  existing^ 
outstanding  indebtedness  of  said  township,"  which  act  was 
passed  on  February  ist,  1893. 

The  following  is  an  exact  copy  of  each  of  said  bonds,  ex- 
cept as  to  the  number  and  the  time  of  maturity  thereof,  to  wit : 
[Here  set  out  bond  in  haec  verba.] 

Paragraph  2.  Plaintiff  is  the  owner  and  holder  of  the 
bond  numbered  one  ( i )  of  said  series  of  bonds,  which  became 
due  and  was  payable  on  the  first  day  of  July,  1898,  payment 
of  which  defendant  has  refused  and  still  refuses  to  make. 
The  following  is  a  true  copy  of  said  bond,  to-wit :  [Set 
out  bond.] 

There  are  no  credits  or  endorsements  on  said  bond,  and 
there  is  due  the  plaintiff  from  said  defendant  thereon  the  sum 
of  one  thousand  dollars  ($1,000.00),  with  interest  on  said 
sum  from  July  ist,  1898. 

2d  Cause  of  Action. 

Plaintiff  makes  the  allegations  of  paragraph  i  of  its  first 
cause  of  action  herein  a  part  of  this,  its  2d  cause  of  action,  as 
though  the  same  were  here  fully  repeated  and  set  forth. 


DECLARATIONS  AND  PETITIONS.  77 

Plaintiff  is  the  owner  and  holder  of  the  interest  coupon  rej)- 
resenting  the  9th  installment  of  interest  on  bond  Number  One 
(i)  of  said  series  of  bonds,  which  became  due  and  payable 
on  the  first  day  of  July,  1897,  payment  of  which  defendant 
has  refused  and  still  refuses  to  make. 

The  following  is  a  true  copy  of  said  interest  coupon,  to-wit : 
"No.  9.  July  I,  1897. 

The  Township  of  Hardy,  in  Holmes  County,  State  of  Ohio, 
will  pay  the  bearer  thirty  dollars,  at  the  Township  Treasurer's 
office,  Millersburg,  Ohio,  being  six  months'  interest  due  on 
its  refunding  bond  No.  i. 

G.  U.  Duer,  Township  Clerk." 

There  are  no  credits  or  endorsements  on  said  coupon,  and 
there  is  due  the  plaintiff  thereon  from  said  defendant  the 
sum  of  thirty  dollars  ($30.00),  with  interest  on  said  sum 
from  July  i,  1897. 

3d  Cause  of  Action. 

Plaintiff  makes  the  allegations  of  paragraph  i  of  its  first 
cause  of  action  herein  a  part  of  this,  its  3d  cause  of  action, 
as  though  the  same  were  here  fully  repeated  and  set  forth. 

Plaintiff  is  the  owner  and  holder  of  the  interest  coupon 
representing  the  loth  installment  of  interest  on  bond  num- 
bered I  of  said  series  of  bonds,  which  became  due  and  payable 
on  the  first  day  of  January,  1898,  payment  of  which  defendant 
has  refused  and  still  refuses  to  make. 

The  following  is  a  true  copy  of  said  interest  coupon,  to-wit '. 
"No.  10.  January  i,   1898. 

The  Township  of  Hardy  in  Holmes  County,  State  of  Ohio, 
will  pay  the  bearer  thirty  dollars,  at  the  Township  Treasurer's 
office,  Millersburg,  Ohio,  being  six  months'  interest  due  on 
its  refunding  bond  No.  i. 

G.  U.  Duer,  Township  Clerk." 

There  are  no  credits  or  endorsements  on  said  coupon,  and 
there  is  due  the  plaintiff  thereon  from  said  defendant  the  sum 
of  thirty  dollars,  with  interest  on  said  sum  from  the  first  day 


78 


SUITS   AT  LAW. 


of  January,    1898.     [/w  like  manner  make  assessments  for 
other  coupons  and  conclude  as  folloivs:]     Plaintiff  therefore 

prays  judgment  against  said  defendant  for  the  sum  of  

dollars,  with  interest  on dollars  ($ )  from ,  and 

on  dollars    ($ )    from  ,   and  on  dollars 

($ )  from ,  and  on dollars  ($ )  from , 

and  costs  of  suit. 
IVerification.]; 

R.  X., 
Attorney  for  Plaintiff. 


No.  i>:a. 

Petition  by  County  Treasurer  for  Back  Taxes  (i). 

[Caption.] 

The  above  named  Joseph  L.  Yost,  citizen  of  the  State  of 
Ohio,  says  that  he  is  the  duly  elected,  qualified  and  acting 
treasurer  of  Lucas  County,  Ohio,  and  that  the  Lake  Erie 
Transportation  Company  is  a  corporation  duly  organized  un- 
der the  laws  of  the  State  of  Michigan,  and  that  he,  said  Yost, 
as  such  treasurer,  has  in  his  hands  all  the  duplicates  of  said 
county  containing  the  unpaid  personal  property  taxes  due  him 
as  such  treasurer;  that  on  said  duplicates  the  above  named 
defendant  Lake  Erie  Transportation  Company  is  charged  with 
the  following  personal  property  taxes,  to-wit: 
For  the  year  1893  upon  $119,700.00,  taxes  due.  .  .  .$3,423.42 
For  the  year  1894  upon  $243,180.00,  taxes  due. .  .  .$6,954.95 
For  the  year  1895  upon  $220,665.00,  taxes  due. .  .  .$6,399.29 
For  the  year  1896  upon  $200,400.00,  taxes  due. .  .  .$6,252,48 
For  the  year  1897  upon  $182,160.00,  taxes  due. .  .  .$5,428.37 
For  the  year  1898  upon  $165,750.00,  taxes  due. .  .  .$5,502.90 

Making  an  aggregate  sum  now  due  and  payable  of  thirty- 
three  thousand  nine  hundred  and  sixty-one  and  41-100  dol- 
lars ($33,961.41)  ;  that  said  defendant  is  indebted  to  said 
plaintiff  in  said  sum  and  the  same  is  due  and  wholly  unpaid. 
That  in  addition  to  said  sum  of  $33,961.41  now  due  and  pay- 


DECLARATIONS  AND   PETITIONS.  79 

able,  there  is  a  further  sum  of  5  per  cent,  thereon  due  as 
penalty  which  said  plaintiff  as  such  treasurer  is  entitled  to 
receive  as  compensation  for  collecting  delinquent  personal 
property  taxes,  making  an  additional  sum  as  such  penalty  of 
$1,698.07;  that  said  two  sums  make  an  aggregate  sum  of 
$35,659.48,  which  is  now  due  from  said  defendant  to  said 
plaintiff. 

That  a  copy  of  the  certificate  containing  a  statement  of  said 
taxes  issued  by  the  auditor  of  said  county  to  this  plaintiff  is 
hereto  attached  marked  exhibit  "  A,"  and  herewith  filed.  In 
view  of  the  foregoing  facts  said  plaintiff  demands  a  judgment 
against  said  defendant  for  the  said  sum  of  thirty-five  thou- 
sand six  hundred  and  fifty-nine  and  48-100  dollars,  and  inter- 
est thereon  from  the  date  of  the  filing  of  this  petition. 

R.  X., 

[Verification.']  Attorney  for  Plaintiff. 

(i'*  Taken  from  Yost  vs.  Lake  Erie  Transportation  Co.,  112  Fed.  Rep. 
746. 


No.  53. 

Declaration  on  Policy  of  Accident  Insurance. 

[Caption.] 

'  The  plaintiff,  citizen  of  the  state  of ,  as  administrator 

of  C.  H.  B.,  sues  the  defendant,  the  Fidelity  and  Casualty 
Company  of  New  York,  chartered  under  the  laws  of  the  state 
of  New  York,  having  its  main  office  in  the  city  of  New 
York,  and  a  branch  office  in  the  state  of ,  for dol- 
lars, interest  upon  a  policy  of  insurance  issued  to  plaintiff's 

intestate   on   ,   insuring   said   intestate   in   consideration 

of  the  sum  of dollars  paid  for  the  period  of  12  months 

against  bodily  injuries  sustained  through  external  violent  and 
accidental  means.  Said  policy  of  insurance  is  here  to  the 
court  shown. 

Plaintiff  further  avers  that  said  intestate  received  bodily 
injuries  sustained  by  external,  violent  and  accidental  means; 


80  SUITS   AT  LAW. 

the  said  injuries  were  sustained  on ,  from  which  injuries 

he  died  on ,  thereafter. 

Plaintiff  avers  that  all  the  conditions,  stipulations  and  pro- 
visions in  said  policy  have  been  complied  with  both  by  him- 
self and  his  intestate  and  demand  for  payment  thereof  duly 
made  the  same  has  been  refused.  Plaintiff  therefore  sues  for 
said  twenty-five  hundred  dollars  and  interest  thereon,  the  same 
being  due,  owing  and  unpaid. 

X.  &  X., 
Attorneys  for  Plaintiff. 


No.  54. 

Declaration  to  Recover  on  Policy  of  Fire  Insurance. 

[Caption.] 

A.  B.,  plaintiff,  a  citizen  of  the  state  of ,  doing  business 

in  ,   under  the  name  of  A.  B.   Produce  Company,   for 

the  use  of  the  Union  Bank  &  Trust  Company,  which  is  a  cor- 
poration chartered  under  the  laws  of ,  having  its  place  of 

business  in  ,  sues  the  defendant,  C.  D.  Insurance  Com- 
pany of  America,  which  is  a  corporation  chartered  and  organ- 
ized under  the  laws  of  the  state  of ,  for dollars,  the 

value  of  certain  goods,  to-wit,  Irish  potatoes  in  bags,  which 
defendant  insured  against  loss  or  damage  by  fire  by  a  policy 

of  insurance  for  dollars,  issued  in  the  state  of  , 

on  day  of  ,  by  the  defendant  to  plaintiff,  A.  B., 

under  the  name  A.  B.  Produce  Company,  said  policy  being 

No. ,  and  here  to  the  court  shown ;  which  goods  were  in 

a  certain  storehouse,  in  the  city  of ;  to-wit,  house  No. 

149,  on  the  west  side  of  South  street,  loss,  if  any,  made  pay- 
able to  said  Union  Bank  and  Trust  Company,  as  its  interest 
may  appear,  which  goods  were  lost  or  destroyed  by  fire,  on, 

to-wit,  the  day  of  ,  of  which  the  defendant  had 

notice  and  on  account  of  which  said  defendant  on,  to-wit, 
,  denied  all  liability  under  said  policy.     Plaintiffs  also  sue 


DECLARATIONS  AND  PETITIONS.  81 

in  this  action  for  interest  on  the  amount  due  and  owing  to  the 
plaintiff  as  aforesaid. 

On  January ,  said  goods  were  assigned  as  collateral  secur- 
ity to  the  Union  Bank  and  Trust  Company  by  said  A.  B.  Produce 
Company,  of  which  the  defendant  had  notice,  to  secure  the  pay- 
ment of  six  thousand  ddllars,  borrowed  from  said  Union  Bank 
and  Trust  Company  and  owing  by  said  A.  B.-  Produce  Company, 
which  remain  unpaid. 

Plaintiff  demands  a  jury  to  try  the  issues  in  this  cause. 

R.  X., 
Attorney  for  Plaintiff. 


No.  55. 

Complaint  on  Insurance  Policy. 

[Caption.] 

The  plaintiff,  by  Ellison  &  Ellison,  its  attorneys,  respectfully 
shows  to  the  court  and  alleges  on  information  and  belief, 

First.  That  at  all  the  times  hereinafter  mentioned,  the  plaintiff 
was  and  now  is  a  corporation  existing  under  and  by  virtue  of 
the  laws  of  the  state  of  Kansas,  and  a  citizen  of  said  state. 

Second.  That  at  all  of  said  times  the  defendant  was  and  now 
is  a  corporation  organized  and  existing  under  the  laws  of  the 
state  of  New  York  and  having  its  principal  place  of  business  in 
the  borough  of  Manhattan  in  the  city  and  county  of  New  York, 
and  was  duly  authorized  to  and  was  transacting  the  business  of 
fire  insurance  therein  and  elsewhere  in  said  last  mentioned  state. 

Third.  That  on  or  about  the  6th  day  of  February,  1914,  the 
defendant,  at  the  said  city  and  county  of  New  York,  made  and 
issued  to  the  plaintiff  a  certain  policy  of  insurance  No.  178,716 
in  writing  in  the  New  York  standard  form,  wherein  and  whereby 


82  SUITS  AT  LAW. 

in  consideration  of  the  payment  of  the  sum  of  sixteen  thousand 
eight  hundred  and  forty  and  20/100  dollars  ($16,840.20)  pre- 
mium then  paid  to,  received,  and  ever  since  retained  by  the 
defendant,  the  said  defendant  insured  the  plaintiff  and  for  ac- 
count of  whom  it  might  concern,  the  loss,  if  any,  payable  to  them 
for  the  term  of  one  year  from  the  19th  day  of  January,  1914, 
at  noon,  against  all- direct  loss  or  damage  by  fire  except  as  in 
said  policy  of  insurance  provided,  to  the  amount  of  six  million 
four  hundred  and  seventy-seven  thousand  dollars  ($6,477,000) 
on  the  following  described  property,  viz. : 

"On  iron  tanks  and  foundations,  pipes,  valves,  fittings  and  fix- 
tures connected  therewith,  numbered  specifically  in  the  policy; 
also  on  petroleum  and  its  products  while  contained  in  above 
described  tanks,  which  said  policy  of  insurance  and  endorsements 
therein,  also  provided  that  in  case  of  loss  not  exceeding  $5,000 
to  be  paid  on  any  one  tank  and  foundations,  pipes,  valves,  fit- 
tings and  fixtures  connected  therewith,  nor  more  than  $70,000 
on  any  one  tank  and  petroleum  and  its  products  therein. 

"This  policy  covers  its  pro  rata  proportion  of  each  of  the 
above  amounts. 

"This  policy  shall  cover  any  direct  loss  or  damage  caused  by 
lightning  (meaning  thereby  the  commonly  accepted  use  of  the 
term  lightning,  and  in  no  case  to  include  loss  or  damage  by 
cyclone,  tornado  or  wind  storm),  not  exceeding  the  sum  insured, 
nor  the  interest  of  the  insured  in  the  property  and  subject  in  all 
other  respects  to  the  terms  and  conditions  of  this  policy.  Pro- 
vided, however,  if  there  shall  be  any  other  insurance  on  said 
property,  this  company  shall  be  liable  only  pro  rata  with  such 
other  insurance  for  any  direct  loss  by  lightning,  whether  such 
other  insurance  be  against  direct  loss  by  lightning  or  not. 

"Petroleum  and  its  products  subject  to  the  90%  co-insurance 
clause  as  follows : 

"It  is  hereby  understood  and  agreed  that,  in  the  event  of 
loss,  this  insurance  shall  be  liable  for  no  greater  proportion  of 
said  loss  than  the  sum  hereby  insured  bears  to  ninety  per  cent. 
(90%)  of  the  cash  value  of  the  petroleum  and  its  products  con- 
tained in  said  tanks  at  the  time  when  such  loss  shall  happen. 


DECLARATIONS  AND  PETITIONS.  83 

"Permission  to  make  additions,  alterations  and  repairs,  without 
limit  of  time,  to  work  at  all  hours,  for  tanks  to  be  empty,  for 
other  insurance,  to  keep  on  hand,  use  and  do  on  the  premises 
all  things  necessary  for  the  conduct  of  the  business  and  for 
tanks  to  stand  on  leased  ground. 

"It  is  understood  and  agreed  that  any  error  in  description  or 
location  of  above  described  property  shall  not  operate  to  the 
prejudice  of  the  assured. 

"It  is  understood  that  the  Western  Adjustment  and  Inspection 
Company  will  act  for  the  underwriters  in  the  adjustment  of  any 
loss  that  may  occur  under  this  policy. 

"Provided  present  limits  as  above  be  not  exceeded,  all  altera- 
tions, additions  and  increases  attach  hereto  from  date  of  mail 
or  other  advices  being  sent  to  Johnson  &  Higgins,  New  York, 
at  pro  rata  premium." 

Fourth.  That  on  or  about  September  2,  1914,  a  fire  occurred 
at  tanks  No.  8,  9  and  13,  which  are  among  those  mentioned  in 
said  policy,  at  Barney  Farm,  Drumright,  Oklahoma,  and  that  by 
said  fire  property  consisting  of  said  tanks  with  their  contents  of 
petroleum,  and  belonging  to  the  plaintiff  The  Prairie  Oil  &  Gas 
Q)mpany,  exclusively,  was  damaged  and  destroyed  by  said  fire 
to  an  amount  exceeding  in  value  the  sum  of  one  hundred  and 
two  thousand  one  hundred  and  forty-six  and  86/100  dollars 
($102,146.86),  and  that  said  fire  did  not  happen  nor  was  it  caused 
by  any  of  the  causes  excepted  in  said  policy  of  insurance. 

Fifth.  That  before  the  commencement  of  this  action,  the  plain- 
tiflF  duly  performed  all  of  the  conditions  of  said  policy  on  its 
part  to  be  performed. 

Sixth.  That  at  the  time  of  the  loss  aforesaid,  there  was  other 
insurance  upon  the  said  property,  and  the  proportion  of  the  said 
loss  and  damage  by  the  fire  aforesaid  of  and  due  by  the  defend- 
ant under  said  policy  of  insurance  was  the  sum  of  fifteen  thou- 
sand three  hundred  and  twenty-two  and  03/100  dollars 
($15,322.03). 

Seventh.  That  this  action  was  commenced  within  one  year 
from  the  date  of  the  said  fire. 


84  SUITS   AT   LAW. 

Eighth.  That  under  the  terms  of  said  policy  of  insurance,  said 
sum  of  fifteen  thousand  three  hundred  and  twenty-two  and 
03/100  dollars  ($15,322.03)  became  due  to  the  plaintiff  on  or 
about  the  16th  day  of  April,  1915,  and  that  no  part  of  said  sum 
has  been  paid,  although  payment  thereof  has  been  demanded  of 
the  defendant. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defend- 
ant for  the  sum  of  fifteen  thousand  three  hundred  and  twenty- 
two  and  03/100  dollars  ($15,322.03)  with  interest  thereon  from 
the  16th  day  of  April,  1915,  together  with  the  costs  and  expenses 
of  this  action. 

A.  B.  and  C.  D., 

Attorneys. 


No.  56. 

Petition  on  a  Credit  Indemnity  Bond  (1). 
[Caption.] 

The   plaintiff   states   that   it    is   a   corporation    organized    and 

doing  business  under  the  laws  of  the  state  of  ,  and  is  a 

citizen  of  said  state,  having  its  principal  place  of  business  at 

,  county, ,  in  this  circuit,  and  that  the  defendant 

is  a  corporation  organized  and  doing  business  under  the  laws 

of  the  state  of  ,  and  is  a  citizen  of  said  state,  having  its 

principal  place  of  business  in  ,  state  of  ,  and  that  the 

amount  in  controversy  in  this  case  is  more  than  two  thousand 
dollars,  exclusive  of  interest  and  costs. 

The  plaintiff  further  states  that  the  defendant  was  at  the  dates 
hereinafter  mentioned  authorized  by  its  charter  "to  engage  in  and. 
carry  on  the  business  of  indemnifying  and  guaranteeing  mer- 
chants and  manufacturers  against  loss  resulting  from  the  insolv- 
ency of  debtors  to  whom  goods  and  merchandise  has  been  sold, 
or  consigned  for  sale,  upon  the  payment  of  a  premium  therefor. 

That  on  the  day  of ,  the  said  defendant,  in  con- 
sideration of  the  payment  of  a  premium  of  dollars,  which 


DFXLARATIOXS    -\ND   PETITIONS.  •  85 

was  then  and  there  paid,  the  said  defendant  issued  to  this 
plaintiff,  who  was  then  and  has  ever  since  been  engaged  in 
the  manufacture  and  sale  of  paper,  its  certain  bond  of  indem- 
nity, wherein  in  consideration  of  said  premium  it  guarantfted 
the  plaintiff  to  an  extent  not  exceeding  the  sum  of  twenty 
thousand  dollars  resulting  from  the  insolvency  of  debtors  as 
thereinafter  defined,  over  and  above  the  loss  of  two  thousand 
dollars,  first  to  be  borne  by  the  plaintiff  on  total  gross  sales, 
shipments  and  deliveries  of  goods,  wares  and  merchandise 
amounting  to  four  hundred  thousand  dollars  or  less,  said  sales, 

shipments  and  deliveries  to  be  made  between  the day  of 

,  and  the day  of ,  both  days  inclusive,  to  firms, 

corporations  or  individuals  actively  engaged  in  mercantile 
pursuits  in  the  United  States  of  America,  but  no  one  debtor 
was  to  be  recovered  for  more  than  ten  thousand  dollars  net 
loss. 

That  by  condition  eleven  o-f  said  bond  it  was  provided  as 
follows :  "  The  term  insolvency  of  debtors  wherever  used  m 
this  bond  is  defined  to  be :  Where  a  debtor  has  made  a  gen- 
eral assignment  for  the  benefit  of  his  creditors;  where  an  at- 
tachment for  debt  shall  have  been  levied  on  his  general  stock 
in  trade;  where  a  writ  of  execution  against  him  shall  have 
been  issued  in  favor  of  the  indemnified  or  any  other  creditor 
and  returned  unsatisfied,  except  where  such  execution  has  been 
so  issued  and  returned  after  a  receiver  has  been  appointed, 
where  a  receiver  of  the  general  stock  in  trade  of  a  debtor 
shall  have  been  appointed.  It  is  agreed  and  understood  that 
liability  on  the  part  of  the  said  Credit  Indemnity  Company  for 
claims  against  debtors  whose  affairs  have  gone  into  the  hands 
of  a  receiver  shall  be  established  only  where  the  said  debtor 
proves  to  be  insolvent,  and  the  said  A.  B.  Company  shall 
furnish  the  said  Credit  Indemnity  Company  during  the  term 
of  this  bond  a  sworn  certificate  by  the  receiver  showing  that 
the  estate  of  such  debtor  is  insolvent,  and  that  it  is  not  possible 


86 


SUITS   AT  LAW. 


to  SO  administer  the  estate  as  to  payi  its  indebtedness  in 
full." 

It  was  a  further  condition,  numbered  four,  that  notifications 
of  claims  must  be  delivered  to  the  said  defendant  on  blanks 
furnished  and  in  the  manner  prescribed  by  it  within  twenty 
days  after  the  indemnified  shall  have  had  information  of  the 
insolvency  of  any  debtor,  and  must  be  received  at  the  central 
office  of  the  company  at  — ■—,  during  the  term  of  the  bond, 
but  the  indemnified  was  allowed  twenty  days  after  the  ex- 
piration of  said  bond  in  which  to  file  notifications  of  claims 
on  debtors  who  have  been  insolvent  during  the  last  twenty 
days  of  the  term  of  said  bond;  and  it  was  further  provided 
that  accounts  in  litigation,  but  not  settled  at  the  time  of 
adjustment  under  this  bond,  may  be  proven  under  any  subse- 
quent renewal,  provided  the  litigation  shall  be  terminated  dur- 
ing the  term  of  said  renewal. 

It  was  further  provided  by  Condition  12c  that  a  final  state- 
ment of  all  claims  which  have  been  filed  in  accordance  with 
condition  number  four  shall  be  made  by  the  indemnified  and 

forwarded  to  the  central  office  of  said  company  at ,  in  the 

manner  prescribed  and  upon  blanks  to  be  furnished  upon  ap- 
plication, which  final  statement  must  be  received  at  said  office 
within  thirty  days  after  the  expiration  of  said  bond;  and  it 
was  provided  that  the  adjustment  should  be  had  within  sixty 
days  after  the  receipt  of  said  final  statement  by  the  com- 
pany, and  the  amount  then  found  to  be  due,  it  was  provided, 
should  then  become  due  and  payable,  and  by  condition  five  it 
was  further  provided  that  the  loss  first  to  be  borne  by  the 
indemnified  should  be  one-half  of  one  per  cent,  on  total  gross 
sales  of  four  hundred  thousand  dollars,  and  in  like  ratio 
upon  sales  in  excess  of  said  sum. 

The  plaintiff  further  states  that  on  the day  of , 

the  defendant,  in  consideration  of  a  further  sum  of dol- 
lars then  and  there  paid  by  the  plaintiff  to  the  defendant, 
rerenewed  the  said  bond  of  indemnity  from  the day  of 


DECLARATIONS  AND  PETITIONS.  87 

— ,  to  the day  of ,  both  days  inclusive,  on  substan-. 

tially  the  same  terms  and  conditions,  except  that  the  initial 

loss  to  be  borne  by  the  indemnified  was  raised  to dollars, 

or  one  and  one-half  per  cent,  on  dollars  of  sales,  and 

the  same  ratio  on  all  sums  in  excess  of  that. 

It  was  further  provided  in  the  eighth  condition  of  said  re- 
newal as  follows :  "  In  case  this  bond  is  a  renewal  and  the 
premium  has  been  paid  at  or  before  the  expiration  of  the 
preceding  bond,  covered  losses  occurring  during  the  term 
of  this  bond  on  shipments  made  during  the  term  of  the  said 
preceding  bond  may  be  proven  hereunder,  subject  also  to  the 
terms,  conditions  and  limitations  of  said  preceding  bond." 

The  plaintiff  further  states  that  during  the  year  covered  by 
the  first  mentioned  bond  the  plaintiff's  gross  sales  amounted 

to dollars  ($ ),  so  that  its  initial  loss  to  be  borne  by  it 

was dollars  ($ )  ;  that  said  plaintiff  had  sold  and  de- 
livered merchandise  to  the  L.  M.  Paper  Company,  of , 

during  the  term  of  said  bond,  from  which  there  arose  and  was 
existing  an  indebtedness  shortly  prior  to  ,  of dol- 
lars, ($ ). 

That  within  less  than  twenty  days  prior  to  said  date  said 
L.  M.  Paper  Company  became  insolvent  and  all  of  its  assets 
were  taken   possession  of  by  a   receiver,   M.   O.,   appointed 

by  the  Common  Pleas  Court  of county,  state  of , 

and  that  on  this   defendant   received   at   its   office   in 

the  plaintiff's  notification  of  said  insolvency   and   loss, 

which  was  within  twenty  days  from  the  time  the  plaintiff  ob- 
tained information  of  said  insolvency;  and  on ,  said  de- 
fendant received  at  its  said  office  in  from  the  plaintiff 

an  affidavit  of  said  receiver  setting  out  the  information  and 
in  accordance  with  the  terms  of  condition  eleven  of  said 
bond  and  a  final  statement  of  said  loss,  no  part  of  which  has 
been  paid. 

That,  furthermore,  during  the  term  of  said  bond  this 
plaintiff  has  sold  and  delivered  to  the  partnership  firm  of 


88  SUITS  AT  LAW. 

H.  T.  and  Company,  of  ,  large  amounts  of  merchan- 
dise; that  on  ,  the  said  H.  T,  and  Company  be- 
came insolvent  and  all  of  the  assets  thereof  were  taken  pos- 
session of  by  a  chattel  mortgagee;  and  on  ,  said  de- 
fendant received  at  its  office  in ,  a  notification  from  this 

plaintiff  of  said  insolvency  and  loss,  which  was  less  than  twen- 
ty days  after  the  plaintiff  first  obtained  information  thereof, 

and  on  ,  a  final  statement  thereof  was  received  by  said 

defendant. 

That  at  the  time  said  H.  T.  and  Company  became  insolvent 

they  were  indebted  to  this  plaintiff  in  the  sum  of dollars 

($ ),  no  part  of  which  has  since  been  paid. 

That  shortly  after  the  failure  of  said  H.  T.  and  Com- 
pany this  plaintiff  sued  the  individual  members  of  said 
partnership  in  the  Circuit  Court  of  county,  ,  up- 
on said  claim  in  several  suits  upon  notes  that  had  been 
given  for  a  part  of  said  account,  and  upon  the  balance  as  an 
open  account;  and  all  of  said  suits  were  contested  and  the 

whole  of  said  indebtedness  was  in  litigation  on  and  after , 

but  on  the day  of ,  this  plaintiff  obtained  a  judgment 

against  H.  T.  and  J.  M.,  partners  as  H.  T.  and  Company, 
the  only  members  of  said  firm  within  the  jurisdiction  of  said 
court,  which  was  a  court  having  jurisdiction  of  the  subject 

matter  of  said  suits,  and  on  the day  of ,  caused  an 

execution  to  issue  thereon,  which  was  returned  unsatisfied  by 

the  sheriff  of  said county, ,  and  on  the day  of 

,  this  plaintiff  made  its  final  statement  of  said  loss  to  the 

defendant,  which  was  received  at  its  office  in  the  city  of , 


on  the day  of ,  no  receiver  having  been  appointed  of 

said  H.  T.  and  Company's  assets ;  but  said  defendant  has  ever 
since  the  first  notification  of  said  loss  repudiated  all  liability  for 
any  part  of  the  same  and  has  never  since  adjusted  or  paid  any 
part  thereof. 

Wherefore  plaintiff  prays  judgment  against  said  defendant 


DECLARATIONS  AND   PETITIONS.  89 

for  the  sum  of dollars,  with  interest  from ,  and  its 

costs.  R.  X., 

Attorney  for  Plaintiff. 

[Veri£cation.'\ 

( I )  Taken  from  Champion  Coated  Paper  Company  vs.  American  Credit 
&  Indemnity  Co.,  103  Fed.  Rep.  609. 


No.  57. 

Petition  to  Recover  for  Libel. 

[Caption.'] 

W.  C,  a  citizen  of  the  state  of ,  brings  this,  his  civil 

action  at  law  against  E.  C.  and  O.  O.,  the  defendants,  who  are 

citizens  of  the  state  of and  reside  in  the  District 

thereof;  and  thereupon  the  said  plaintiff  complains  for  that 
the  said  W.  C.  is  now  a  good,  true,  honest,  just  and  faithful 
citizen,  and  as  such  hath  always  behaved  and  conducted  him- 
self, and  until  the  committing  of  the  several  grievances  by 
the  said  E.  C.  and  O.  O.,  as  hereinafter  mentioned,  was  always 
reputed,  esteemed  and  accepted  by  and  amongst  all  his  neigh- 
bors and  other  good  and  worthy  citizens  to  whom  he  was  in 
any  wise  known,  to  be  a  person  of  good  name,  fame  and  credit, 
to  wit,  in  the District  of ,  aforesaid. 

And  whereas,  also,  the  said  W.  C.  hath  not  ever  been 
guilty,  nor  until  the  time  of  the  committing  of  the  said  sev- 
eral grievances  by  the  said  E.  C.  and  O.  O.  as  hereinafter 
mentioned,  been  supposed  to  have  been  guilty  of  theft,  em- 
bezzlernent,  larceny,  or  any  other  such  crime  or  dishonesty. 

By  means  of  which  said  premises,  he,  the  said  W.  C,  be- 
fore the  committing  of  the  said  several  grievances  by  the  said 
E.  C.  and  O.  O.,  as  hereinafter  mentioned,  had  deservedly  ob- 
tained the  good  opinion  and  credit  of  all  his  neighbors,  and 
other  good  and  worthy  citizens  to  whom  he  was  in  any  wise 
known,  to  wit,  in  the District  of ,  aforesaid. 

Yet  the  said  E.  C.  and  O.  O.  well  knowing  the  premises, 
but  greatly  envying  the  happy  state  and  condition  of  the  said 


90  SUITS  AT  LAW. 

W.  C,  and  contriving  and  wickedly  and  maliciously  intend- 
ing to  injure  the  said  W.  C.  in  his  said  good  name,  fame  and 
credit,  and  to  bring  him  into  public  scandal,  infamy  and 
disgrace,  with  and  amongst  all  his  neighbors  and  other  good 
and  worthy  citizens,  and  to  cause  it  to  be  suspected  and  be- 
lieved by  those  neighbors  and  citizens  that  he,  the  said  W.  C, 
had  been  and  was  guilty  of  theft,  larceny  and  embezzlement, 
and  to  subject  him  to  the  pains  and  penalties  by  the  laws  of 

the  state  of  ,  made  and  provided  against  and  inflicted 

upon  persons  guilty  thereof;  and  to  vex,  harass,  oppress,  im- 
poverish and  wholly  ruin  him,  the  said  W.  C.  heretofore,  to 

wit,  on  the day  of ,  at ,  in  the District  of 

,  aforesaid,  falsely  and  maliciously  did  compose  and  pub- 
lish, and  cause  and  procure  to  be  published  of  and  concerning 
him,  the  said  W.  C,  a  certain  false,  scandalous,  malicious  and 
defamatory  libel  containing,  amongst  other  things,  the  false, 
scandalous,  malicious,  defamatory  and  libelous  matter  follow- 
ing, of  and  concerning  him,  the  said  W.  C,  that  is  to  say, 
"  that  after  a  Httle  more  than  a  year's  service,  the  Dayton 

Company  "  ( Thereby  meaning  the  E.  F.  Company  of  , 

of  which  the  said  E,  C.  was  president,  and  of  which  the  said 
O.  O.  was  general  manager,  and  in  which  the  said  E.  C.  and 
O.  O.  had  respectively  large  pecuniary  interests,)  "dispensed 
with  the  services  of  the  said  C."  (by  the  said  C,  meaning 
him,  the  said  W.  C,  and  meaning  that  he,  the  said  C.  had 
been  in  the  employ  of,  and  had  rendered  services  to  the  said 
E.  F.  Company  for  upwards  of  a  year,)  "  about  which  time" 
(thereby  meaning  the  time  at  which  the  services  of  the  said  C. 
to  the  said  E.  F,  Company  terminated),  "the  said  W.  C." 
(thereby  meaning  W.  C,  the  plaintiff)  "  carried  from  the 
office  of  the  Dayton  Company  "  ( thereby  meaning  the  office 
of  the  said  E.  F.  Company)  "  certain  drawings  of  a  com- 
puting scale"  (thereby  meaning  that  the  plaintiff.  W.  C,  had 
unlawfully  taken  and  carried  away  certain  of  the  personal 
goods  of  the  E.  F.  Company,  and  thereby  meaning  that  the 


DECLARATIONS  AND  PETITIONS.  91 

said  W.  C,  the  plaintiff,  was  guilty  of  theft,  larceny  and 
embezzlement),  "practically  the  same  as  the  scale  now  made 
by  the  K.  S.  Company,"  (thereby  meaning  and  intending  a 
corporation  of  the  name  of  the  K.   S.  Company,  organized 

and  existing  under  the  laws  of  the  state  of ,  at in  the 

said  state)  "  and  for  the  manufacture  of  which  suit  was 
brought  on  the  6th  inst.  for  infringement "  (thereby  mean- 
ing that  suit  had  been  brought  by  the  said  E.  F.  Company 
against  the  said  K.  S.  Company  for  infringement  of  certain 
letters  patent  for  invention  of  the  United  States  of  America), 
and  the  said  W.  C.  hereunto  annexes  and  makes  part  hereof  a 
copy  in  full  of  the  said  false,  scandalous  and  malicious,  defam- 
atory and  libelous  matter  marked  Exhibit  "  A." 

By  means  of  the  committing  of  which  said  several  griev- 
ances by  the  said  E.  C.  and  O.  O.  as  aforesaid,  he,  the  said 
W.  C,  has  been  and  is  greatly  injured  in  his  said  good  name, 
fame  and  credit,  and  brought  into  public  scandal,  infamy  and 
disgrace  with  and  amongst  his  neighbors  and  other  good  and 
worthy  citizens,  in  so  much  that  divers  of  those  neighbors 
and  citizens  to  whom  the  innocence  and  integrity  of  said  W. 
C.  in  the  premises  were  unknown,  have,  on  account  of  the 
committing  of  the  said  grievances  by  the  said  E.  C.  and  O.  O. 
as  aforesaid,  from  thence  hath  suspected  and  believed  and  still 
do  suspect  and  believe  him,  the  said  W.  C.  to  have  been  and 
to  be  a  person  guilty  of  theft,  larceny  and  embezzlement,  and 
have  by  reason  of  the  committing  of  the  said  grievances  by  the 
said  E.  C.  as  aforesaid,  from  thence  hath  wholly  refused  and 
still  do  refuse  to  have  any  transaction,  acquaintance  or  dis- 
course with  him,  the  said  W.  C,  as  they  were  before  used 
and  accustomed  to  have,  and  otherwise  would  have  had,  and 
the  said  W.  C.  has  been  and  is  by  means  of  the  premises  other- 
wise greatly  injured,  to  wit :  at  the  District  of  

aforesaid,  wherefore  the  said  W.  C.  saith  that  he  is  injured 


92  SUITS   AT  LAW. 

and  has  sustained  damage  to  the  amount  of  one  hundred  thou- 
sand dollars.     And  therefore  he  brings  his  suit. 

X.  and  X., 
Attorneys  for  Plaintiff.  (1) 
[Verification.] 

(1)  Taken  from  Culmer  v.  Canby,  101  Fed.  195. 


No.  58. 

Declaration  in  Action  for  Damages  for  Defamation  by  Calling 
a  White  Man  a  Negro. 

[Caption.] 

first  Count. 

The  plaintiff  sues  the  defendants  for  $25,000  as  damages,  by 
reason  of  the  following  facts,  to-wit: 

Plaintiff  is  a  white  man. 

The  defendants  on  or  about  the  30th  day  of  December,  1913, 
being  confederated  together  in  an  unincorporated  association, 
known  as  the  "Brotherhood  of  Locomotive  Firemen  and  Engi- 
neers, Clinchfield  Lodge  No.  763,"  by  Walter  L.  Spratt,  their 
agent  thereunto  authorized  falsely  and  maliciously  wrote  and 
published  of  and  concerning  the  plaintiff  in  a  letter  addressed 
and  delivered  to  one  H.  F.  Staley  of  Erwin,  Tennessee,  the  fol- 
lowing false  and  defamatory  matter,  with  intent  to  defame  the 
plaintiff,  to-wit: 

"Brotherhood  of  Locomotive  Firemen  and  Enginemen,  Clinch- 
field  Lodge  No.  763. 

"December  30th,  1913. 
"Mr.  H.  F.  Staley,  M.  M., 

"Erwin,  Tenn. 
"Dear  Sir: 

"Some  time  ago  evidence  came  into  our  possession  of  Isac 
Cousins  not  being  fool  blooded  white,  and  by  a  unanimous  vote 
of  the  members  of  the  B.  of  L.  F.  &  E.  he,  Isac  Cousins  was 
expelled  from  the  Brotherhood  on  account  of  falsely  answering 
questions.  By  request  of  the  Brotherhood  I  as  chairman  ask  that 
the  run  he  holds  be  vacated  on  the  grounds  that  he  is  a  non- 


DECLARATIOiVS  AND   PETITIONS.  93 

proniotable  man.  If  you  desire  any  further  evidence  of  the 
above  being  one  quarter  negro  please  notify  us  at  once  and  we 
will  furnish  you  with  same. 

"Yours  Resp. 

"W.  L.  Spratt,  Chairman." 

Meaning  thereby  that  the  plaintiff,  Isaac  Cousins,  is  not  a 
white  man,  but  a  negro. 

Plaintiff  was  at  that  time  and  is  now,  married  to  a  white 
woman,  to-wit,  Mrs.  Annie  Cousins,  by  whom  he  had  then  two 
children.  Plaintiff's  marriage  to  said  Annie  Cousins,  then  Annie 
Mumpower,  took  place  in  the  state  of  Tennessee  and  they  lived 
together  in  said  state  as  man  and  wife  for  some  time.  These 
facts  were  then  well  known  to  defendants  and  to  H.  F.  Staley, 
to  whom  said  letter  was  addressed. 

It  was  then  and  is  now  by  the  laws  of  Tennessee  a  crime, 
to-wit,  a  felony,  for  a  person  having  one-fourth  negro  blood  to 
marry  a  white  person  or  for  them  to  live  together  in  this  state 
as  man  and  wife,  of  which  fact  defendants  had  knowledge,  or 
were  charged  with  knowledge. 

Plaintiff  says  that  under  these  circumstances  the  said  publi- 
cation constituted  a  charge  that  plaintiff  was  guilty  of  a  crime 
under  the  laws  of  Tennessee,  to-wit,  a  felony,  which  exposed 
him,  and  still  exposes  him,  to  a  prosecution  for  such  felony.  He 
says  that  such  charge  has,  for  many  other  reasons,  caused  him 
and  his  wife  annoyance,  humiliation  and  embarrassment. 

Plaintiff  was  greatly  injured  in  his  character  and  reputation 
by  reason  of  the  above  facts. 

Plaintiff  says  that  said  publication  was  made  maliciously  with 
intent  to  injure  plaintiff;  that  it  was  made  wantonly,  and  that 
defendants  negligently  failed  to  make  such  inquiry  as  they  should 
have  made  to  ascertain  whether  or  not  the  allegations  made  in 
the  above  quoted  letter  were  true.  By  reason  of  which  facts 
plaintiff  says  that  he  is  entitled  to  punitive  damages,  for  which 
he  asks. 

Plaintiff,  therefore,  avers  that  he  has  a  right  of  action  against 
the  defendants  for  the  sum  above  demanded,  and,  therefore,  he 
sues,  and  demands  a  jury  to  try  this  cause. 


94  SUITS   AT  LAW. 

Second  Count. 
The  plaintiff  sues  the  defendants  for  $25,000  as  damages  by- 
reason  of  the  following  facts,  to-vvit : 

Plaintiff  is  a  white  man,  and  was  on  and  for  over  three  years 
prior  to  December  30,  1913  a  locomotive  fireman  in  the  employ 
of  the  Carolina,  Clinchfield  &  Ohio  Railway,  running  out  of 
Erwin,  Tennessee.  Plaintiff  was  (and  is,  except  to  the  matters 
set  out  below)  in  good  standing  with  said  railway,  there  being 
nothing  against  his  record  as  such  fireman-  Defendants  were, 
also,  locomotive  firemen  in  the  employ  of  said  Carolina,  Clinchfield 
&  Ohio  Railway.  Plaintiff  held  in  the  employ  of  said  railway 
what  is  known  as  a  "promotable  run,"  by  virtue  of  which  he 
was  eligible  to  promotion  to  the  more  lucrative  and  desirable 
position  of  locomotive  engineman  on  said  railway.  Most  of  the 
defendants  were  junior  to  plaintiff  in  point  of  service  and  not 
entitled  to  be  promoted  to  enginemen  until  plaintiff  had  first 
been  promoted,  by  reason  of  which  fact  said  defendants  were  in 
position  to  be  benefited  by  plaintiff's  discharge  from  the  service 
of  said  railway  or  by  his  removal  from  said  promotable  run 
to  a  non-promotable  run. 

Plaintiff  avers  that  his  said  promotable  run  was  and  is  more 
valuable  and  desirable  than  a  non-promotable  run  for  many  rea- 
sons, among  them  the  following: 

A  fireman  holding  such  (1)  is  eligible  to  promotion  to  engine- 
man,  while  holding  a  non-promotable  run  is  not  so  eligible ; 
(2)  is  required  to  do  no  night  work,  or  very  little,  while  non- 
promotable  runs  involve  a  great  deal  of  night  work;  (3)  receive 
more  pay  than  a  man  holding  a  non-promotable  run. 

Plaintiff  avers  that  by  a  custom  or  unwritten  law  of  said  Caro- 
lina, Clinchfield  &  Ohio  Railway,  no  negro  fireman  could,  at  the 
time  hereinbefore  mentioned  or  can  now,  hold  a  promotable  run. 
or  serve  as  engineman,  which  fact  was  well  known  to  defendants. 

Plaintiff  alleges  that  he  had  a  contract  of  employment  with 
said  Carolina,  Clinchfield  &  Ohio  Railway,  which  contract  was  in 
writing,  and  protected  him  in  all  the  rights  above  enumerated 
and  against  discharge,  except  for  good  cause,  and  after  a  hear- 
ing. Said  contract  was  made  with  said  railway  for  a  representa- 
tive of  the  firemen  on  behalf  of  plaintiff  and  all  other  firemen 
employed  by  said  road. 


DECLARATIONS  AND  PETITIONS.  95 

Plaintiff  says  that  the  circumstances  and  conditions  being  as 
above,  defendants,  who  were  confederated  together  in  an  unin- 
corporated association  known  as  the  "Brotherhood  of  Locomotive 
Firemen  and  Enginemen,  CHnchfield  Lodge  No.  763,"  on  or  about 
the  30th  day  of  December,  1013.  l)y  Walter  L.  Spratt,  their 
agent  thereunto  authorized,  falsely  and  maliciously  wrote  and 
published  of  and  concerning  the  plaintiff,  in  a  letter  addressed  and 
delivered  to  H.  F.  Staley  of  Ervvin,  Tennessee,  the  followmg  false 
and  defamatory  matter,  with  intent  to  defame  the  plaintiff  and 
injure  him  in  his  trade  and  calling,  to-wit : 

"Brotherhood  of  Locomotive  Firemen  and  Enginemen,  Clinch- 
field  Lodge  No.  763. 

"December  30,  1913. 
"Mr.  H.  F.  Staley,  M.  M., 

"Erwin,  Tenn. 
"Dear  Sir: 

"Some  time  ago  evidence  came  into  our  possession  of  Isac 
Cousins  not  being  fool  blooded  white,  and  by  a  unanimous  vote 
of  the  members  of  the  B.  of  L.  F.  &  E.  Isac  Cousins  was 
expelled  from  the  Brotherhood  on  account  of  falsely  answering 
questions.  By  request  of  the  Brotherhood  I  as  chairman  ask  that 
the  run  he  holds  be  vacated  on  the  grounds  that  he  is  a  non- 
promotable  man.  If  you  desire  any  further  evidence  of  the  above 
being  one  quarter  negro  please  notify  us  at  once  and  we  will 
furnish  you  with  same. 

"Yours  Resp. 

"W.  L.  Spratt,  Chairman." 

Meaning  thereby  that  Isaac  Cousins  is  not  a  white  man,  but 
a  negro. 

Said  H.  F.  Staley,  to  whom  the  above  mentioned  letter  was 
delivered,  was  then  master  mechanic  of  Carolina,  CHnchfield  & 
Ohio  Railway,  having  authority  to  employ  firemen  and  engine- 
men  for  said  railway,  to  dismiss  them  and  to  transfer  them  from 
promotable  runs  to  non-promotable  runs,  and  to  promote  them  to 
enginemen.  By  reason  of  the  false  and  defamatory  matter  con- 
tained in  the  above  described  letter,  said  H.  F.  Staley  did,  soon 
after  the  30th  of  December,  1913,  transfer  plaintiff  from  his 
promotable  run  to  a  non-promotable  run,  whereby  plaintiff  was 


96  '  SUITS  AT  LAW. 

deprived  and  is  still  deprived  of  the  above  described  profits  and 
advantages  incident  to  the  holding  of  said  promotable  run,  was 
injured  in  his  trade  and  calling  and  in  his  character  and  repu- 
tation. 

Plaintiflf  says  that  said  publication  was  made  maliciously  with 
intent  to  injure  plaintiff,  that  it  was  made  wantonly  and  that 
defendants  negligently  failed  to  make  such  inqury  as  thy  should 
have  made  to  ascertain  whether  or  not  the  allegations  made  in 
the  above  quoted  letter  were  true.  By  reason  of  which  facts 
plamtiflf  says  that  he  is  entitled  to  punitive  damages,  for  which 
he  asks. 

Plaintiff,  therefore,  avers  that  he  has  a  right  of  action  against 
the  defendants  for  the  sum  above  demanded,  and,  therefore,  he 
sues,  and  demands  a  jury  to  try  this  cause. 

Third  Count. 

Plaintiff  adopts  in  full  the  first  five  paragrahs  of  the  second 
count,  and  says  further : 

That,  defendants  being  then  confederated  together  in  an  unin- 
corporated association  known  as  the  "Brotherhood  of  Locomotive 
Firemen  and  Enginemen,  Clinchfield  Lodge  No.  763,"  well  know- 
ing the  terms  and  conditions  of  plaintiff's  contract  of  service 
with  said  Carolina,  Clinchfield  &  Ohio  Railway,  maliciously  con- 
spired together  to  interfere  with  said  contract  relations  for  the 
purpose  of  injuring  plaintiff  or  of  benefitting  defendants,  or  some 
of  them,  at  plaintiff's  expense,  which  object  they  accomplished  in 
the  following  manner,  to-wit;  on  or  about  December  30,  1913, 
defendants  caused  Walter  L.  Spratt,  their  agent,  to  write  and 
deliver  to  H.  F.  Staley,  master  mechanic  of  the  Carolina,  Clinch- 
field  &  Ohio  Railway,  a  letter  in  the  words  and  figures  following: 

"Brotherhood  of  Locomotive  Firemen  and  Enginemen,  Clinch- 
field  Lodge  No.  763. 

"December  30,  1913. 
"Mr.  H.  F.  Staley,  M.  M., 

"Erwin,  Tenn. 
"Dear  Sir : 

"Some  time  ago  evidence  came  into  our  possession  of  Isac 
Cousins  not  being  fool  blooded  white,  and  by  a  unanimous  vote 
of  the  members  of  the  B.  of  L.   F.   &   E.   Isac   Cousins   was 


DECLARATIONS  AND  PETITIONS.  97 

expelled  from  the  Brotherhood  on  account  of  falsely  answering 
questions.  By  request  of  the  Brotherhood  I  as  chairman  ask  that 
the  run  he  holds  be  vacated  on  the  grounds  that  he  is  a  non- 
promotable  man.  If  you  desire  any  further  evidence  of  the  above 
being  one  quarter  negro  please  notify  us  at  once  and  we  will 
furnish  you  with  same. 

"Yours  Resp. 

"W.  L.  Spratt,  Chairman." 

Said  H.  F.  Staley.  by  virtue  of  his  position  as  master  mechanic 
of  said  Carolina,  Clinchfield  &  Ohio  Railway,  had  authority  to 
employ  firemen  and  enginemen  for  said  railway,  to  dismiss  them 
and  to  transfer  them  from  promotable  runs  to  non-promotable 
runs,  and  to  promote  them  to  enginemen.  Because  of  the  false 
and  defamatory  matters  contained  in  the  above  mentioned  letter 
and  of  other  false  and  defamatory  statements  of  the  same  nature 
made  to  him  orally  by  defendants,  by  their  agent,  in  pursuance 
of  the  above  mentioned  design  to  injure  plaintiff,  and  also  because 
of  the  pressure  brought  to  bear  on  him  by  defendants  and  the 
threat,  express  or  implied,  that  they,  defendants,  would,  in  their 
organized  capacity  as  a  Brotherhood  of  Locomotive  Firemen  and 
Enginemen,  a  labor  union,  cause  a  strike  of  the  firemen  and  other 
employes  on  said  Carolina,  Clinchfield  &  Ohio  Railway,  or  other- 
wise injure  said  railway,  if  their  demand  contained  in  the  above 
quoted  letter  was  not  complied  with,  said  H.  F.  S?aley  did,  on 
or  about  January  2,  1914.  remove  plaintiff  from  his  promotable 
run  to  »  non-promotable  run,  thereby  plaintiff  was  deprived  and 
is  still  deprived  of  the  above  described  profits  and  advantages 
incident  to  the  holding  of  said  promotable  run,  and  was  other- 
wise injured  in  his  trade  and  calling. 

The  above  described  interference  by  defendants  with  plain- 
tiff's said  contract  of  employment  was  unlawful  and  without 
fust  cause  or  excuse. 

Plaintiff  says  that  said  publication  was  made  maliciously  with 
intent  to  injure  plaintiff;  that  it  was  made  wantonly  and  the 
defendants  negligently  failed  to  make  such  inquiry  as  they  should 
have  made  to  ascertain  whether  or  not  the  allegations  made  in 
the  above  quoted  letter  were  true-  By  reason  of  which  facts 
plaintiff  says  that  he  is  entitled  to  punitive  damages,  for  which 
he  asks. 


98  SUITS  AT  LAW. 

The  plaintiff,  therefore,  avers  that  he  has  a  right  of  action 
against  the  defendants,  for  the  sum  above  demanded  and,  there- 
fore, he  sues,  and  demands  a  jury  to  try  this  cause. 

Isaac  Cousins, 
By  J.  B.  Cox,  Attorney. 
W.  W.  Belew, 

Solicitor. 
James  B.  Cox, 

Solicitor. 


No.  59. 

Declaration  in  Replevin  for  Lumber  Cut  on  Lands  Claimed 
by  Both  Parties  (1). 

[Caption.] 

The  M.  Lumber  Company,  a  corporation  organized  and  exist- 
ing under  the  laws  of  the  state  of and  citizen  of  said  state, 

plaintiff  here,  by  Messrs.  X.  &  X.,  its  attorneys,  complains  of  A.  C 
and   the   Bay  Lumber   Company,   a   corporation   organized   and 

existing  under  the  laws  of  the  state  of  and  citizen  of  said 

state,  defendants  herein,  who  have  been  duly  summoned  to  an- 
swer the  said  plaintiff  herein,  of  a  plea  wherefore  said  defendants 
took  and  unlawfully  detained  certain  goods  and  chattels,  property 
of  the  said  plaintiff  described  in  the  writ  of  replevin  in  this  cause 
and  hereinafter  mentioned. 

And   thereupon   the   said   plaintiff,  by  Messrs.   X.   8i  X.,  its 
attorneys,  complains  against  the  said  defendants  for  that  they, 

the   said   defendants,   heretofore,   to-wit,   on   the  day  of 

,  A.   1).  in   the  county  of and   state  of -, 

in  said  district,  received  the  goods  and  chattels  hereinbefore 
referred  to  from  it.  the  said  plaintiff,  to-wit.  about  twenty- 
two  hundred  (2.200)  pine  saw  logs,  more  or  less,  scaling 
about  five  hundred  twenty  thousand  five  hundred  (520.500) 
feet,  board  measure,  which  were  cut  by  the  defendant,  A.  C, 
during  the  logging  season  of  1895  and  19,^6,  from  the  south- 
west quarter  of  section  twenty-five  (25),  in  township  forty- 
four    (44)    north,    of    range    thirty-six    (36)     west,    in    said 


DECLARAYlONS'AND  PETITIONS.     '*\J/  f.        99 

county  of  Iron,  wHich  said  logs  were  bark-marked  Xll,  and 
end-marked  ®  ,  of  great' .  y?ili^,  tol  ^y^ii:/^  cx<^eeding  the 
value  of  two  thousand  dollars'  ('$2,600*)';  excMSiYe  lof  inter- 
est and  costs,  to  be  delivered  to  said  plaintiff  when  they, 
the  said  defendants,  should  be  thereunto  afterwards  requested. 

And  the  said  plaintiff  further  alleges  that  the  said  logs  were 
cut  from  the  lands  above  described  by  the  said  defendant, 
A.  C,  in  violation  of  an  order  made  by  this  court,  on  the 

equity  side  thereof,  on  the  day  of  ,  A.  D.  , 

in  a  cause  therein  pending  between  the  United  States  of 
America  as  complainants  claiming  title  to  said  land,  and  the 
Lake  Railway  Company,  The  M.  Lumber  Company  and  The 
W.  D.  Company  (Limited),  as  defendants,  claiming  title  as 
against  the  United  States,  wherein  a  bond  was  given  by  the 
said  defendants  in  said  suit  to  the  United  States  for  its  ben- 
efit, and  the  benefit  of  all  parties  in  interest,  as  required  by 
said  court  in  making  said  order,  which  said  order  permitted 
the  cutting  of  said  logs  by  the  said  M.  Lumber  Company, 
plaintiff  herein,  and  which  is  one  of  the  defendants  in  said 
equity  suit,  and  the  said  defendants  deny  the  validity  of  said 
order  as  binding  on  them,  or  as  conferring  any  rights  on  the 
plaintiff  herein,  which  is  one  of  the  questions  in  controversy 
in  this  suit. 

The  said  M.  Lumber  Company  also  claims  the  right  to 
cut  said  timber,  and  to  said  timber  when  cut,  under  and  by 
virtue  of  a  certain  license  and  purchase  from  the  Lake  Rail- 
way Company,  which  company,  as  the  plaintiff  alleges,  and  as 
was  claimed  by  said  company,  was  the  owner  of  said  land 
under  an  act  of  Congress  approved  July  3,   1866,  granting 

said  lands  to  the  state  of to  aid  in  the  construction  of 

a  harbor  and  ship  canal  at  Portage  Lake,  Keweenaw  Point, 
Lake  Superior,  in  said  state,  and  under  a  confirmation  of  the 
selection  thereof  under  said  grant,  by  Act  of  Congress  ap- 
proved March  2,  1889,  entitled:  "An  Act  to  forfeit  lands 
granted  to  the  state  of to  aid  in  the  construction  of  a 


1 00  s  uiTs  A'f '  ikw;- . 

r^^lkiEtd  from to ^  in  said  state' '-'and  that  said  Lake 

Railway  >^6rK|)a3iy'^, Hi tei  tHe.  niaking  of  said  license  and  sale 
to  said  M".  Luftiber  Company,  plaintiff  herein,  sold  and  con- 
veyed said  lands,  subject  to  said  license  and  sale  of  the  tim- 
ber on  said  lands,  to  the  K.  Association  (Limited),  a  corpo- 
ration organized  and  existing  under  the  laws  of  the  state  of 

,  and  a  citizen  of  the Division  of  the District 

thereof.  Said  A.  C.  claims  that  he  had  a  bona  Ude  pre- 
emption claim  on  said  land,  arising  or  asserting  by  actual  oc- 
cupation of  the  land  under  color  of  the  laws  of  the  United 
States,  on  the  first  day  of  May,  i888,  and  that  the  selection 
thereof  under  said  canal  grant  was  therefore  not  confirmed. 
Said  A.  C.  also  claims  that  his  said  alleged  pre-emption  claim 
was  confirmed  by  said  Act  of  March  2,  1889,  and  such  con- 
firmation operated  to  vest  in  him  the  title  to  said  land,  and 
the  right  to  cut  and  remove  the  timber  therefrom,  and  the 
ownership  of  such  timber,  superior  to  the  rights  of  the  plain- 
tiff under  the  Acts  of  Congress  herein  mentioned,  all  of  which 
claims  are  controverted  by  the  plaintiff. 

Said  A.  C.'s  claim  of  actual  occupation  of  said  lands  is 
also  based  on  alleged  actual  possession  of  only  a  small  part 
thereof,  and  the  plaintiff  insists  that  such  actual  occupation 
of  a  portion  of  said  land  can  not  be  extended  by  construction 
so  as  to  constitute  such  occupation  of  the  whole  land  as  is  in- 
tended by  said  act  of  Congress. 

And  the  said  plaintiff  claims  that  it  is  a  bona  fide  pur- 
chaser of  the  said  pine  timber,  for  value,  and  that  the  said 
Lake  Railway  Company,  and  said  K.  Association  (Limited) 
are  bona  fide  purchasers  of  said  land,  for  value,  and  that  the 
title  and  rights  of  the  said  Lake  Railway  Company  and  of 
the  said  K.  Association  (Limited)  to  said  land,  as  well  as 
the  title  of  said  plaintiff  to  said  pine  timber,  was  confirmed 
by  Act  of  Congress  approved  March  2,  1896:  entitled  "An 
Act  to  provide  for  the  extension  of  the  time  within  which 


DECLARATIONS  AND  PETITIONS.  101 

suits  may  be  brought  to  vacate  and  annul  land  grants,  and 
for  other  purposes." 

And  said  Bay  Lumber  Company  claims  to  have  contracted 
with  said  defendant,  A.  C,  for  the  sale  of  the  said  pine  logs, 
and  to  be  entitled  to  the  possession  thereof. 

And  the  determination  of  this  suit  involves  the  construc- 
tion of  the  several  Acts  of  Congress  aforesaid  and  of  the 
order  of  this  court,  on  the  equity  side  thereof,  in  the  suit 
above  mentioned. 

Yet  the  said  defendants,  although  requested  so  to  do, 
have  not  delivered  said  goods  and  chattels  or  any  or  either 
of  them,  to  the  said  plaintiff,  but  have  unlawfully  detained, 
and  still  do  unlawfully  detain  the  same,  to  the  damage  of 
said  plaintiff  of  five  thousand  dollars  ($5,(X)0.oo). 

And  therefore  it  brings  suit,  etc. 

X.  &  X., 
Attorneys  for  Plaintiff. 

(i)  Taken  from  Cunningham  vs.  Metropolitan  Lumber  Co.,  no  Fed. 
Rep.  332. 


No.  60. 

Declaration  in  Ejectment. 

[Caption.^ 

The  plaintiff,  A.  B.,  who  is  a  resident  of ,  in  the  state 

of ,  and  a  citizen  of  the  state  of ,  sues  the  defendant, 

C.  D.,  who  is  a  resident  of county,  in  the division 

of  the district  of ,  and  a  citizen  of  the  state  of . 

For  that  the  plaintiff  is  the  owner,  and  entitled  to  the  im- 
mediate possession  of  a  tract  of  land  of  the  value  of  $ , 

situate,  lying  and  being  in conuty,  ,  and  described 

as  follows : 

Beginning  at  two  white  oaks  and  pointers  on  the  bank 
of  Caney  Fork  river,  being  the  northwest  corner  of  Wm.  Hud- 
gen's  5,000  acre  survey;  thence  east  on  his  line  4475^  poles 
to  a  comer  of  land  conveyed  to  Christian  Franks;  thence 


102  SUITS  AT  LAW. 

north  with  said  Franks'  line  895  poles  to  a  corner;  thence 
west  4473^  poles  to  a  Spanish  oak,  hickory  and  post  oak 
pointers,  a  corner,  thence  south  895  poles  to  the  beginning, 
containing  2,500  acres. 

And  being  the  lawful  owner  of  said  land  as  aforesaid,  the 

plaintiff   avers    that   on,    to    wit:    the   day    of    , 

he  was  in  the  peaceable  possession  thereof;  and  afterwards, 
to  wit:  on  the  day  of  ,  the  defendant  unlaw- 
fully entered  thereon,  and  unlawfully  withholds  and  detains 

the  same  from  the  plaintiff,   together  with   $ due   the 

plaintiff  as  damages  for  the. detention  thereof;  wherefore  the 
plaintiff  sues  to  recover  said  land,  and  the  damages  aforesaid, 
and  demands  a  jury  to  try  this  cause. 

R.  X., 
Attorney  for  Plaintiff. 


No.  61. 

Declaration  in  Trespass  and  Ejectment. 

[Caption.l 

The  plaintiffs,  who  are  citizens  of  the  state  of ,  resid- 
ing at ,  therein,  complain  of  the  defendants,  C.  D.,  E.  F. 

and  G.  H.,  who  are  citizens  of  the  state  of ,  residing  in 

the  division  of  the  district  thereof,  in  an  action 

of  trespass  and  ejectment. 

For  that  heretofore,  to  wit,  on day  of ,  the  plain- 
tiffs were  lawfully  entitled  in  fee  and  were  in  possession  of 
the  following  described  property  situated  in  the  county  of 

,  in  the  said  district,  to  wit,  acres  of  land  in  the 

said  county  situated  in  the  low  lands  o-f  the  Mississippi 
river  above  Fort  Pillow  and  north  of  Cole  Creek,  bounded 
as  follows,  to  wit:     [Here  set  out  description  of  property. 1 

All  of  the  said  property  is  of  the  value  of  exceeding  $ . 

And  the  plaintiffs  being  so  entitled  to  the  said  property,  and 
so  in  possession  thereof,  the  said  defendants,  to  wit,  on  the 


DECLARATIONS  AND  PETITIONS.  103 

said day  of ,  at  the  said  county  of ,  unlawfully 

and  without  right  entered  into  and  upon  the  said  premises, 
and  falsely  and  unjustly  set  up  title  thereto,  as  in  them  re- 
spectively, and  cut  timber  therefrom  and  removed  the  same, 
and  exercised  acts  of  ownership  thereof  under  such  false  and 
unjust  claim  of  title,  and  denied  and  refused  to  recognize  the 
claim  of  these  plaintiffs  to  the  title,  or  their  possession  there- 
under, and  wholly  refused  to  admit  and  repudiated  the  same, 
as  they  still  do. 

Wherefore  the  plaintiffs  have  been  injured  and  damaged 
to  the  amount  of  $ ,  and  they  bring  their  suit  for  the  re- 
covery of  the  said  lands  and  the  said  damages. 

R.  S., 

[V erification.']  Attorney  for  Plaintiffs. 


No.  62. 

Petition  by  U.  S,  for  Timber  Trespass. 
To  the  Honorable  the  Judge  of  the  District  Court  of  the 


United  States  in  and  for  the District  of 


The  petition  of  the  United  States  respectfully  represents 

that  C.  D.,  E.  F.,  and  G.  H.,  in  the  district  of , 

and  within  the  jurisdiction  of  this  court,  are  jointly  and  sev- 
erally indebted  unto  the  United  States  in  the  sum  of  $ , 

with  six  per  cent,  interest  on  said  sum  from  the  day 

of ,  A.  D. ,  till  paid,  for  this,  to  wit : 

The  market  value  at  ,  the  place  of  delivery  of  pine 

trees,  the  property  of  the  United  States,  which  said  trees 
were  illegally,  tortuously  and  in  bad  faith  cut  and  removed, 

during  the  year  A.  D. ,  by  C.  D.  from  the  public  lands 

of  the  United  States,  viz:  [here  describe  the  lands.']  and 
which  said  pine  trees  were  by  said  C.  D.  sold  and  delivered 

at  ,  to  said  E.  F.  and  G.  H.,  who  purchased  same  in 

bad  faith,  and,  after  converting  same  into  lumber,  sold  and 
disposed  of  said  lumber  for  their  own  use  and  benefit,  in 


104  SUITS  AT  LAW. 

fraud  of  your  petitioners'  rights,  and  with  fuh  knowledge  at 
the  date  of  said  sale  and  delivery,  of  the  facts  hereinbefore  set 
forth,  thus  rendering  themselves  liable,  jointly  and  severally 
with  said  C.  D.,  the  original  trespassers,  unto  the  United  States 
for  the  full  market  value,  after  manufacture  into  lumber  of 
said  pine  trees. 

Petitioners  avers  that  said  pine  trees,  rendered  into  lumber, 

yielded feet,  board  measure,  and  that  said  lumber  was  well 

worth,  at  a   fair  market  value,  at  the  place  of  delivery,  $ 

per  thousand  feet,  or  said  sum  of  $ ,  for  which  said  sum  said 

C.  D.,  E.  F.  and  G.  H.  are  jointly  and  severally  liable  unto  the 
United  States,  with  interest  as  claimed.  Petitioners  allege  amic- 
able demand  without  avail. 

Wherefore,  your  petitioners  pray  for  citation  to  said  parties 
defendant,  and  for  service  of  this  petition,  and,  after  legal  hear- 
ing and  delay,  for  judgment  in  their  favor  against  said  C.  D., 
E.  F.  and  G.  H.,  the  defendants,  jointly  and  severally,  for  said 

sum  of  $ ,  with  interest  as  claimed.     Petitioners  pray  for 

all  costs  and  general  relief. 

J-H., 
U.  S.  Attorney,  — —  District  of . 

(1)  See  R.  S.  Sec.  2461,  and  Act  of  June  3,  1878,  20  Stat.  L.  90. 

The  United  States  may  sue  for  the  conversion  of  the  timber,  even  if 
the  defendant  has  been  acquitted  of  criminal  charge  therefor.  Stone 
V.  U.  S.,  64  Fed.  Rep.  667.  See  also  U.  S.  v.  Scott,  39  Fed.  900; 
U.  S.  V.  St.  Anthony  R.  Co.,  114  Fed.  722. 


No.  63. 

Petition  by  the  United  States  against  Railway  for  Failing  to 
Unload  Stock  en  route  (1). 

[Caption.] 

The  United  States  of  America,  plaintiffs,  by  J.  H.,  United 

States  attorney  for  the  district  of  ,  complain  of  the 

defendant,  the  C.  D.  Railroad  Company,  and  state: 

That  heretofore,  to-wit,  on  the day  of  ,  in  the  year 

of  our  Lord  nineteen  hundred  and  — ,  and  before  and  ever  since 
said   date    said    defendant   was   a   corporation   created   by   and 


DECLARATIONS   AND   PETITIONS.  105 

organized  and  existing  under  the  laws  of  the  state  of  ,  and 

carried  on  its  business  in  the  district  of  ,  and  was  at  said 

times  and  is  now  a  railroad  company,  within  the  United  States 
of  America,  and  owned  and  operated  a  railroad  which  formed  part 
of  a  line  of  road  over  which  cattle  and  swine  and  other  animals 
were  conveyed  from  one  state  to  another,  to-wit :  from  the  state 

of to  the  state  of  ,  and  from  the  state  of  to  the 

state  of  ,  and  over  which  said  line  of  road  the  cattle  and 

swine  hereinafter  mentioned  were  conveyed   from   the  state  of 

to  the  state  of ,  and  from  the  state  of into  another 

state,  to-wit,  the  state  of ,  and  which  said  railroad  as  afore- 
said, owned  and  operated  by  the  defendant  extends  from 

in  the  said  state  of to  in  the  said  state  of  ,  and 

the  M.  &  O.  Railroad  Company  was  then  and  there  a  corporation 

created  by  and  under  the  laws  of  the   state  of  ,  and  then 

and  there  owned  and  operated  another  railroad,  which  said  rail- 
road so  owned  by  said  M.  &  O.   Railroad  Company  connected 

wM'th  said  road  of  said  defendant  at station,  in  the  state  of 

,  and  extended  from  station  in  said  state  of  ,  to 

said  station,  in  said  state  of  . 


And  on  the  said  day  of ,  19 — ,  at  half  past  eight 

o'clock  in  the  morning,  said  M.  &  O.  Railroad  Company  received 

from  one  M.  D-,  at station  aforesaid,  a  great  many,  to-wit, 

one  hundred  and  ninety-nine  cattle  and  two  hundred  and  forty 
swine,  which  said  cattle  and  swine  were  loaded  into  six  cars,  and 
six  separate  bills  of  lading  were  made  and  delivered  by  defend- 
ant to  said  M.  D.,  and  said  defendant  undertook  and  agreed  to 

convey  said  cattle  and  swine  to  ,  in  the  state  of  ,  and 

then  and  there  confined  said  cattle  and  swine  in  cars,  forming  a 
part  of  a  train  of  cars  and  conveyed  said  cattle  and  swine  over 

the  railroad  of  said  M.  &  O.  Railroad  Company  to  station 

aforesaid,  without  unloading  said  cattle  or  swine,  and  then  and 
there  delivered  said  cattle  and  swine  to  defendant,  which  the 
defendant  then  and  there  undertook  and  agreed  to  convey  said 

cattle  and  swine  to  aforesaid,  and  did  convey  said  cattle 

and  swine  without  unloading  the  same  to  city,  in  the  state 

of  ,  and  said  cattle  and  swine  did  not  arrive  at  said  

city  until o'clock  in  the  afternoon  of  the day  of , 

of  19—. 


106  SUITS  AT  LAW. 

And  said  defendant,  within  the  jurisdiction  of  this  court,  did 
knowingly  and  willingly  confine  said  cattle  and  swine  in  rail- 
road cars  for  a  period  of  more  than  twenty-eight  consecutive 
hours,  to-wit,  for  inore  than  thirty-one  consecutive  hours,  with- 
,  out  unloading  said  cattle  and  swine  for  any  period  of  rest,  water 
and  feeding,  said  period  of  thirty-one  hours  including  the  period 
said  cattle  and  swine  were  confined  on  the  road  of  said  M.  &  O. 
Railroad  Company,  without  unloading  the  same. 

And  said  defendant  was  not  prevented  from  so  unloading  said 
cattle  and  swine  by  storm  or  other  accidental  causes. 

And  said  cattle  and  swine  were  not  carried  in  cars  in  which 
they  could  or  did  have  proper  food,  water,  space,  or  opportunity 
to  rest,  contrary  to  the  form  of  the  statute  in  such  cases  made 
and  provided. 

The  plaintifif  further  states  that  the  allegation  contained  in  the 
petition  herein,  that  the  said  cattle  and  swine  so  received  by  the 
said  AI.  &  O.  Railroad  Company  at  said  time  were  received  at 

station,  was  made  by  mistake — that  the  fact  is,  said  cattle 

and  swine  were  received  by  said  railroad  company  at  sta- 
tion on  said  railroad. 

Whereby  and  by  virtue  of  sections  numbered  4386  (2)  and 
4388  of  the  Revised  Statutes  of  the  United  States,  a  right  of 
action  hath  accrued  to  the  plaintiffs,  and  the  said  defendant  hath 
forfeited  and  become  liable  to  pay  to  plaintififs  a  penalty  of  not 
less  than  $100.00  and  not  more  than  $50000  for  each  and  every 
of  said  six  car  loads  of  cattle  and  swine. 

Wherefore   the  plaintiff  prays  judgment    for  $ ,   and   for 

its  costs  herein  expended,  and  for  all  proper  relief. 

J.  H., 
United  States  Attorney. 

(1)  Taken  from  the  record  in  the  case  of  Newport  News  &  Miss. 
Valley  R.  Co.  v.  United  States,  61  Fed.  488,  9  C.  C.  A.  579. 

(2)  These  sections  were  repealed  by  34  Stat.  L.  608,  Sec.  5  and 
new  sections  enacted  including  essentially  the  substance  of  the  old 
with  considerable  additions  in  detail. 

A  suit  under  these  sections,  although  to  recover  a  penalty,  is  a 
civil  proceeding  so  far  as  concerns  pleadings  and  proofs,  U.  S.  v. 
Atlantic  Coast  Line  R.  Co.,  173  Fed.  767;  where  stock  on  a  train  has 
been  loaded  in  lots  at  different  times,  the  time  limit  expires  and  the 
right    of    action    accrues    on    each    lot    separately,    regardless    of    the 


DECLARATIONS  AND   PETITIONS.  107 

number  of  owners,  of  number  of  cars,  and  the  causes  of  action  on 
the  various  lots  may  be  consolidated,  B.  and  O.  S.  W.  R.  Co.  v. 
U.  S.,  220  U.  S.  94,  55  L.  Ed  384;  consent  of  owner  to  longer  confine- 
ment is  no  defense  to  action  by  the  United  States  to  enforce  the 
penalty.     Ibidem. 


No.  64. 

Petition  of  Receiver  against  Stockholder. 

[Caption.] 

The  plaintiff  above  named,  by  Wilson  &  Wallis,  his  attorneys, 
complains  of  the  above-named  defendant,  and  alleges : 

1.  That  on  or  about  the  26th  day  of  November,  A.  D.  1884, 
the  Minnesota  Thresher  Manufacturing  Company  was  a  cor- 
poration duly  incorporated  under  and  by  virtue  of  the  constitu- 
tion and  laws  of  the  state  of  Minnesota ;  that  ever  since  said 
date  said  corporation  has  continued  to  be  and  now  is  a  body 
corporate,  organized,  created  and  existing  under  and  by  virtue 
of  said  constitution  and  laws  of  said  state;  and  that  said  cor- 
poration is  and  at  all  times  has  been  a  citizen  and  resident  of 
said  state  of  Minnesota.  That  on  the  16th  day  of  August,  A.  D, 
1901,  the  plaintiff  was  and  still  is  a  citizen  and  resident  of  the 
state  of  Minnesota.  That  the  defendant  is  a  citizen  of  the  state 
of  New  York  and  a  resident  of  the  city  of  New  York  within 
the  southern  district  of  New  York.  And  that  the  matter  in 
controversy  in  this  action  exceeds,  exclusive  of  interest  and 
costs,  the  sum  of  two  thousand  dollars. 

2.  That  the  articles  of  incorporation  of  said  Minnesota 
Thresher  Manufacturing  Company  (hereinafter  called  the 
Thresher  Company)  provided  that  the  objects  for  which  said 
corporation  was  formed  was  the  purchase  of  the  capital  stock, 
evidences  of  indebtedness  issued  by  and  the  assets  of  the  North- 
western Manufacturing  and  Car  Company,  a  corporation  exist- 
ing under  the  laws  of  the  state  of  Minnesota,  or  any  portion  of 
said  capital  stock,  evidences  of  indebtedness  or  assets,  and  the 
manufacture  and  sale  of  steam  engines,  and  all  kinds  of  farm 
implements,  machinery  of  all  kinds,  and  the  manufacture  and  sale 
of  all  articles,  implements  and  machinery,  of  which  wood  and 
iron,  or  either  of  them,  form  the  principal  component  parts  and 


108  SUITS  AT  LAW. 

the  manufacture  of  materials  therein  used,  with  a  principal  place 
of  business  at  the  city  of  St.  Paul,  in  the  county  of  Ramsay,  in 
said  state  of  Minnesota,  which  afterwards,  by  amendment  to 
said  articles  of  incorporation,  duly  made,  was  changed  to  the 
city  of  Stillwater,  in  the  county  of  Washington,  in  said  state  of 
Minnesota  ;  that  after  its  incorporation  as  aforesaid  said  Thresher 
Company  engaged  in  and  carried  on  at  said  St.  Paul  and  at  said 
Stillwater  all  the  classes  of  business  authorized  by  said  articles 
of  incorporation ;  that  said  articles  of  incorporation  have  never 
been  in  any  way  altered,  amended  or  modified,  except  as  afore- 
said. 

3.  That  on  the  6th  day  of  May,  A.  D.  1901,  said  Minnesota 
Thresher  Manufacturing  Company  was  indebted  to  the  Mer- 
chants National  Bank  of  St.  Paul,  Minnesota,  a  banking  cor- 
poration organized  and  existing  under  the  laws  of  the  United 
States  of  America,  having  its  place  of  business  at  the  city  of 
St.  Paul,  in  the  state  of  Minnesota,  in  the  sum  of  two  thousand 
nine  hundred  and  thirty-six  dollars  and  seven  cents  ($2,936.07)  ; 
that  prior  thereto  an  action  had  been  duly  commenced  in  the 
district  court  for  Ramsay  county,  Minnesota,  in  which  the  said 
bank  was  the  plaintiff,  and  said  Thresher  Company  was  the 
defendant,  of  which  said  cause  said  court,  which  was  a  court 
of  general  jurisdiction  and  of  record,  had  acquired  jurisdiction 
of  both  of  the  parties  and  of  the  subject-matter  thereof,  and 
on  the  6th  day  of  May,  1901,  judgment  was  duly  entered  and 
docketed  in  said  court  in  favor  of  said  Merchants  National  Bank 
of  St.  Paul,  Minnesota,  said  plaintiff,  and  against  said  Thresher 
Company,  for  two  thousand  nine  hundred  and  thirty-six  dollars 
and  seven  cents  ($2,936.07).  That  thereafter  executions  directed 
to  the  sheriffs  of  said  Ramsay  county  and  said  Washington 
county,  were  duly  issued  to  said  sheriffs,  and  by  them  duly 
returned  wholly  unsatisfied. 

4.  That  at  the  time  said  judgment  was  entered  and  said  exe- 
cutions were  issued  and  returned  as  aforesaid,  and  for  a  long 
time  prior  thereto,  and  at  all  times  thereafter,  said  Thresher 
Company  was,  and  it  now  is,  wholly  insolvent  and  without  any 
assets  or  property  whatsoever,  other  than  the  liability  of  its 
stockholders  as  hereinafter  set  forth. 


DECLARATIONS  AND  PETITIONS.  109 

5.  That  after  the  return  of  said  executions  as  aforesaid,  and 
on  or  about  the  16th  day  of  August,  1901,  said  Merchants  Na- 
tional Bank,  as  a  judgment  creditor  of  said  Thresher  Company, 
duly  instituted  and  commenced  in  the  district  court  for  the  said 
county  of  Washington  and  state  of  Minnesota,  which  said  court 
was  then  and  there  a  court  of  record  and  of  general  jurisdiction, 
an  action  against  said  Thresher  Company  under  and  pursuant 
to  the  provisions  of  Chapter  76  of  the  General  Statutes  of  the 
state  of  Minnesota,  and  the  acts  amendatory  thereof  and  supple- 
mentary thereto,  for  the  sequestration  of  the  stock,  property, 
things  in  action  and  effects  of  the  said  Thresher  Company,  and 
for  the  appointment  of  a  receiver  for  the  same ;  that  said  Thresher 
Company  was  duly  and  personally  served  with  summons  and 
process  in  said  action,  and  on  or  about  the  16th  day  of  August, 
1901,  duly  appeared  in  said  action  by  its  duly  authorized  attorney. 

6.  That  on  the  said  16th  day  of  August,  1901,  judgment  was 
duly  given,  rendered  and  entered  in  and  by  said  court  in  said 
action,  adjudging  that  the  stock,  property,  things  in  action  and 
effects  of  said  Thresher  Company  be  sequestered,  and  that  a 
receiver  therefor  be  appointed ;  that  such  judgment  has  never 
been  appealed  from  nor  in  any  m.anner  modified,  reversed  or 
set  aside. 

7.  That  on  the  16th  day  of  August,  1901,  such  proceedings 
were  duly  had  that  this  plaintiff,  Theodore  R.  Converse,  was 
by  said  district  court  for  Washington  county,  Minnesota,  in  said 
cause,  duly  appointed  receiver  of  all  the  property,  assets,  rights 
and  interests  of  said  Thresher  Company  of  every  sort  or  nature, 
either  in  law  or  in  equity,  and  with  full  authority  and  direction 
to  sue  for,  collect,  recover,  compromise  or  settle  any  and  all 
stockholders'  liability  that  might  exist  under  the  constitution  and 
laws  of  the  state  of  Minnesota,  or  otherwise,  and  to  prosecute 
and  sue  for  the  amount  of  such  liability,  or  any  assessment  that 
might  be  made  by  said  court  on  account  thereof  for  the  satis- 
faction of  the  claims  of  the  creditors  of  said  Thresher  Company, 
and  all  expenses  of  administration  of  said  trust,  including  fees, 
allowances,  expenses  of  said  receiver  and  his  counsel,  and  with 
full  power  and  authority  to  sue  for  and  enforce  the  collection 
of  any  assessment  or  stockholders'  liability,  either  in  the  courts 
of  the  state  of  Minnesota  or  the  courts  of  anv  other  state  or 


110  SUITS    AT   LAW. 

territory,  or  the  courts  of  the  United  States  sitting  in  any  state 
or  territory  of  the  United  States,  and  with  full  power  and 
authority  to  prosecute  appeals  or  sue  out  writs  of  error  in  any 
such  suits  or  cases  that  might  be  so  instituted  by  said  receiver 
for  the  collection  of  such  assessments  or  stockholders'  liability, 
and  in  general  to  do  and  perform  all  acts  that  in  the  opinion 
of  said  receiver,  or  that  he  might  be  advised,  were  needful  or 
proper  for  the  enforcement  and  collection  of  such  assessments 
and  stockholders'  liability  in  any  of  the  courts  of  the  United 
States,  or  the  various  states  and  territories  of  the  United  States ; 
and  said  receiver  was  further  directed  to  seize  and  take  into  his 
possession,  sue  for  and  recover  any  and  all  property  of  every 
sort  and  nature  possessed  by  said  corporation. 

8.  That  the  plaintiff  duly  qualified  as  such  receiver  and  entered 
upon  the  performance  of  his  duties  as  such  receiver,  and  ever 
since  has  acted,  and  now  is  acting,  as  such. 

9.  That  thereafter,  according  to  and  in  pursuance  of  the  laws 
of  the  state  of  Minnesota,  such  proceedings  were  had  in  said  last- 
mentioned  action,  that  an  order  of  said  district  court  of  said 
Washington  county  was  made  and  entered  therein  on  the  3d  day 
of  September,  1901,  authorizing  and  requiring  the  creditors  of 
said  Thresher  Company  to  become  parties  to  said  action,  and  to 
appear  and  exhibit  therein  their  claims  against  said  Thresher 
Company  in  the  manner  prescribed,  and  within  the  time  specified 
in  said  order,  to-wit,  on  or  before  six  months  from  and  after  the 
first  publication  thereof.  That  immediately  after  the  entry  of 
said  order,  the  said  order  was  duly  published  as  required  therein, 
and  that  within  the  time  therein  limited,  and  in  the  manner  therein 
prescribed,  certain  creditors  of  said  Thresher  Company  duly  be- 
came parties  to  said  action  as  intervenors  therein,  and  duly  ex- 
hibited therein  their  claims  and  demands  against  said  Thresher 
Company,  and  proved  the  same,  and  after  hearing  duly  had  in 
said  action,  said  claims  of  such  creditors  were  duly  allowed  to  the 
amount  of  four  hundred  and  forty-three  thousand  seven  hundred 
and  fifty-two  dollars  and  seventeen  cents  ($443,752.17),  which  is 
the  entire  amount  of  the  indebtedness  of  said  corporation,  so  far 
as  this  plaintiff  has  been  informed  and  as  he  verily  believes. 

10.  That  at  the  time  of  the  organization  and  incorporation  of 
said  Thresher  Company,  and  at  all  times  hereafter,  during  its 


DECLARATIONS  AND  PETITIONS.  Ill 

corporate  existence,  and  at  the  time  when,  and  at  all  times  since, 
the  said  defendant  became  the  sole  beneficial  owner  of  stock  in 
said  Thresher  Company,  as  hereinafter  alleged,  it  was  provided 
in  and  by  the  constitution  and  general  laws  of  the  state  of  Minne- 
sota pursuant  to  which  said  corporation  was  organized  and  incor- 
porated, that  each  and  every  stockholder  and  beneficial  owner  of 
stock  of  said  corporation  severally  agreed  to  assume  and  did  as- 
sume liability  for  the  indebtedness  of  said  corporation  in  case  of 
deficiency  or  insufficiency  of  corporate  assets  to  liquidate  such 
indebtedness,  to  the  amount  of  the  par  value  of  his  stock;  and 
further  agreed,  in  case  of  such  deficiency,  to  pay  and  contribute 
for  the  equal  benefit  of  the  creditors  of  such  corporation  such 
amount,  not  exceeding  the  par  value  of  the  stock  held  by  such 
stockholder,  or  held  for  the  benefit  of  or  in  trust  for  such  bene- 
ficial owner,  as  might  be  required  to  make  up  such  deficiency,  and 
to  realize  such  fund  as  might  be  requisite  for  the  payment  of  said 
creditors  in  full.  That  under  said  constitution  and  general  laws, 
and  the  decisions  of  the  supreme  court  of  the  state  of  Minnesota, 
and  of  the  supreme  court  of  the  United  States,  construing  and 
interpreting  the  same,  said  agreement  and  undertaking  on  the  part 
of  the  stockholders,  and  on  the  part  or  in  behalf  of  such  beneficial 
owners,  is  contractual  and  transitory,  and  runs  to  and  is  enforce- 
able for  the  corporate  creditors  by  the  receiver  of  the  corporation, 
and  that  the  same  is  enforceable  by  such  receiver  in  any  juris- 
diction whereof  jurisdiction  of  stockholders  or  beneficial  owners 
may  be  obtained ;  and  that  said  contract  and  agreement,  on  the 
part  of  the  stockholders  or  beneficial  owners  grows  out  of  and 
follows  the  subscription  to  or  acquisition  of  the  corporate  stock 
wherein  and  whereby  each  stockholder  and  beneficial  owner  guar- 
antees the  payment  of  all  corporation  indebtedness  contracted, 
created  or  existing  while  such  stock  is  held  by  or  for  him,  and  to 
the  amount  of  his  stock  as  aforesaid.  And  the  said  defendant, 
when  he  authorized  the  acceptance  in  his  behalf  of  the  stock  of 
said  corporation  now  owned  and  held  for  him  as  hereinafter  set 
forth,  accepted  the  said  provisions  of  the  laws  of  Minnesota  in 
relation  thereto,  and  agreed  to  assume  and  pay  the  indebtedness 
of  said  corporation  to  the  extent  of  the  par  value  of  the  stock  so 
owned  and  held  for  him  therein,  or  so  much  thereof  as  might  be 
necessary  for  the  payment  of  such  indebtedness,  and  to  subject 


112  SUITS   AT   LAW. 

himself  to  any  assessments  that  might  lawfully  be  imposed  by  the 
courts  of  Minnesota  for  that  purpose.  And  under  the  laws  of 
Minnesota,  the  liability  of  said  defendant  upon  his  agreement 
aforesaid  was  and  is  an  asset  of  said  corporation. 

11.  That  on  or  about  the  10th  day  of  December,  1886,  said 
defendant  was  the  owner  and  holder  of  four  hundred  (400) 
shares  of  the  preferred  capital  stock  of  the  Northwestern  Manu- 
facturing and  Car  Company,  a  corporation  organized  under  the 
laws  of  the  state  of  Minnesota,  and  duly  assigned  the  same  by 
instrument  in  writing  bearing  date  of  that  day,  made  and  executed 
by  him,  and  duly  delivered  unto  D.  B.  Dewey,  R.  F.  Hersey  and 
D.  N.  Morgan,  as  trustees,  in  trust  for  the  uses  and  purposes  and 
upon  the  terms  and  conditions,  and  with  the  authority,  therein 
stated  and  set  forth  ;  and,  thereby,  among  other  things,  authorized 
the  said  trustees  or  their  successors  to  exchange  the  said  shares 
of  the  preferred  capital  stock  of  the  Northwestern  Manufacturing 
and  Car  Company  for  an  equal  number  of  shares  of  the  common 
stock  of  the  aforesaid  Minnesota  Thresher  Manufacturing  Com- 
pany, and  to  hold  the  shares  of  the  common  stock  of  the  said 
Thresher  Company  received  by  them  through  such  exchange  in 
behalf  of,  and  in  trust  for  the  benefit  of  said  defendant;  a  true 
copy  of  which  said  instrument  in  writing  is  hereto  annexed, 
marked  "Exhibit  C,"  and  hereby  referred  to  and  made  part  hereof 
as  fully  as  if  set  up  at  length  herein.  That  under  and  in  pursuance 
of  the  provisions  of  the  said  instrument  the  said  Dewey,  Morgan 
and  Hersey,  did  exchange  said  preferred  stock  of  the  defendant 
in  the  Northwestern  Manufacturing  and  Car  Company  so  assigned 
to  them  by  the  defendant  for  an  equal  number  of  the  shares  of  the 
common  stock  of  said  Thresher  Company,  for  which,  on  or  about 
May  24,  1887,  a  certificate  bearing  date  of  that  day  was  issued  to 
them  as  trustees.  That  ever  since  said  last-mentioned  day  the 
said  trustees,  their  successors  and  survivors  have  held  four  hun- 
dred (400)  shares  of  the  common  stock  of  said  Thresher  Com- 
pany in  trust  for  the  benefit  of  said  defendant.  That  on  the  16th 
day  of  August,  1901,  and  while  the  provisions  of  the  constitution 
and  laws  of  the  state  of  Minnesota,  as  aforesaid,  remained  in  full 
force  and  eflfect,  the  above-named  defendant  was  the  sole  bene- 
ficial owner  of  the  said  four  hundred  (400)  shares  of  the  capital 
stock  of  the  said  Thresher  Company,  and  entitled  to  have  the 


DECLARATIONS  AND  PETITIONS.  113 

same  transferred  to  himself  upon  demand.  That  one  E.  D.  Buf- 
fington,  duly  appointed  one  of  the  trustees,  is  the  successor  of  the 
original  trustees  hereinbefore  named.  That  after  the  expiration 
of  the  period  of  five  years  mentioned  in  said  assignment  of  De- 
cember 10,  1886,  said  trustees,  their  survivors  or  successors,  duly 
notified  said  defendant  that  they  held  said  four  hundred  (400) 
shares  for  his  sole  benefit  and  stood  ready  to  transfer  the  same  to 
him.  And  that  under  said  constitution  and  laws  of  said  state  of 
Minnesota  the  stockholder's  liability  for  the  debts  of  the  corpora- 
tion and  to  the  payment  of  the  assessment  hereinafter  mentioned, 
is  the  personal  liability  of  the  beneficial  owner  of  such  stock  and 
not  of  the  trustee  in  whose  name  the  stock  stands  upon  the  books 
of  the  company  when  such  stock  is  held  in  trust,  as  it  is  in  the 
case  of  this  defendant. 

12.  That  at  the  time  the  said  defendant  became  the  beneficial 
owner  of  said  shares  of  the  capital  stock  of  said  Thresher  Com- 
pany, the  provisions  of  the  constitution  and  laws  of  the  state  of 
Minnesota  hereinbefore  set  forth  were  in  full  force  and  effect, 
and  became  a  part  of  defendant's  contract  in  the  purchase  and 
acquisition,  through  said  trustees,  of  the  beneficial  ownership  of 
said  shares  of  stock ;  and  said  defendant  in  and  by  the  authorizing 
and  directing  of  such  purchase  and  acquisition,  through  said  trus- 
tees, of  the  said  shares  of  stock  and  the  holding  of  the  same  by 
the  said  trustees  in  his  behalf  and  for  his  benefit,  duly  contracted 
and  agreed  for  a  valuable  consideration  that  he  would  be  and 
remain  responsible  with  the  other  stockholders  and  beneficial 
owners  of  the  stock  of  said  company  for  all  contracts,  debts  and 
engagements  of  said  company  while  he  remained  such  beneficial 
owner,  to  the  amount  of  such  stock  at  the  par  value  thereof,  to- 
wit,  to  the  amount  of  twenty  thousand  dollars  ($20,000). 

13.  That  it  is  provided  by  the  laws  of  the  state  of  Minnesota, 
as  follows :     *     *     * 

14.  That  this  plaintiff,  by  virtue  of  the  laws  of  the  state  of 
Minnesota,  and  his  appointment  as  such  receiver,  becam.e  and  was 
and  is  the  representative  of  all  the  creditors  of  said  insolvent  cor- 
poration, is  invested  with  the  title  to  all  the  rights  of  action  pos- 
sessed by  said  corporation,  including  the  aforesaid  liability  of  its 
stockholders,  and  is  authorized  to  maintain  such  actions  as  are 
necessary  to  recover  the  assets  thereof,  included  among  which  is 
the  liability  of  said  defendant  hereinbefore  set  forth. 


114  SUITS   AT  LAW. 

15.  That  on  the  16th  day  of  April,  1902,  the  plaintiff,  as  such 
receiver,  duly  made  and  caused  to  be  filed  with  and  presented  to 
said  district  court  of  said  Washington  county,  according  to  law, 
a  petition  by  the  plaintiff  as  such  receiver,  praying,  among  other 
things,  that  said  court  might,  by  order  or  judgment  in  said 
action,  direct  and  levy  a  ratable  assessment  upon  the  parties  liable 
as  stockholders  of  said  Thresher  Company,  for  such  amount,  pro- 
portion, or  percentage  of  the  liability  upon  or  on  account  of  each 
share  of  said  stock,  as  said  court  should  deem  proper  after  hear- 
ing, as  by  law  provided,  pursuant  to  the  provisions  of  Chapter  272 
of  the  general  laws  of  Minnesota  for  the  year  1899  (an  act  en- 
titled "An  act  to  provide  for  the  better  enforcement  of  the  liability 
of  stockholders  of  corporations"),  as  hereinbefore  set  forth,  and 
praying  that  said  court  by  order  appoint  a  time  for  hearing  such 
petition  and  application,  and  direct  such  notice  thereof  to  be  given 
as  said  court  should  deem  proper. 

16.  That  on  said  16th  day  of  April,  1902,  said  court  duly  made 
and  entered  its  order  in  said  last-mentioned  action  in  pursuance 
of  the  provisions  of  said  chapter  272  of  the  laws  of  1899;  that 
notice  of  said  order  was  duly  given  in  the  manner  prescribed  by 
said  order,  notice  of  said  order  being  duly  published  and  served 
or  mailed  as  therein  directed ;  and  that  a  copy  of  said  order  was 
duly  mailed  to  the  defendant  herein  more  than  twenty  days  prior 
to  the  date  of  hearing  specified  therein.  That  said  matter,  having 
been  duly  adjourned  from  time  to  time,  and  having  duly  come  on 
for  final  hearing  on  the  10th  day  of  December,  1902,  at  which 
time  evidence  was  introduced  by  the  receiver  and  by  certain 
objecting  stockkholders  in  said  Thresher  Company,  and  th_^  said 
matter  having  been  orally  argued  to  said  court  by  counsel  en  be- 
half of  said  stockholders  and  by  counsel  on  behalf  of  this  plain- 
tiff, thereafter,  and  on  the  22nd  day  of  December,  1902,  said  court 
duly  made  and  entered  its  order  or  decree  in  said  action,  a  true 
copy  of  which  said  order  or  decree  is  hereto  annexed,  marked 
"Exhibit  A,"  and  hereby  referred  to  and  made  a  part  hereof  as 
fully  as  if  set  up  at  length  herein,  and  said  last-mentioned  order 
or  decree  has  never  been  in  any  manner  reversed,  modified  or 
set  aside. 

17.  That  said  court,  in  and  by  said  order  or  decree,  adjudged 
that  an  assessment  of  thirty-six  (36)  per  cent,  of  the  par  value  of 


DECLARATIONS   AND   PETITIONS.  115 

each  share  of  the  capital  stock  of  said  Thresher  Company — to- 
wit,  the  sum  of  eighteen  dollars  (.$18)  on  each  share  thereof — 
be,  and  the  same  was  thereby,  assessed  upon  and  against  each 
and  every  share  of  said  capital  stock,  and  upon  and  against  the 
person,  corporation  or  party  liable  as  a  stockholder  of  said 
Thresher  Company  for,  upon  or  on  account  of  said  shares  of 
stock,  and  that  each  and  every  person,  corporation  or  party  liable 
as  such  stockholder  of  said  Thresher  Company  pay,  and  was 
thereby  directed  to  pay  to  this  plaintiff,  as  receiver  of  said 
Thresher  Company,  at  his  office  in  the  city  of  Stillwater,  county 
of  Washington  and  said  state  of  Minnesota,  within  thirty  days 
after  the  date  of  said  order,  the  said  sum  of  eighteen  dollars  ($18) 
for  and  on  account  of  each  and  every  share  of  said  stock  for  or 
upon  which  said  person,  corporation  or  party  was  liable  as  a  stock- 
holder of  said  Thresher  Company,  as  aforesaid,  and  that  in  and 
by  said  order  or  decree  this  plaintiff,  as  such  receiver,  was  ordered 
to  give  due  notice  of  such  order  or  decree  by  mailing  a  copy  of  the 
same  within  ten  days  from  the  date  thereof  to  each  stockholder  of 
said  Thresher  Company  whose  name  and  address  was  known  to 
said  receiver.  That  the  amount  so  aforesaid  adjudged  and  as- 
sessed against  the  stockholders  of  said  corporation,  was  a  just  and 
proper  amount  for  the  payment  of  its  indebtedness  and  the  other 
charges  which,  by  the  laws  of  Minnesota,  this  plaintiff  was  re- 
quired to  pay,  and  was  and  is  necessary  for  that  purpose. 

18.  That  notice  of  said  last-mentioned  order  of  said  district 
court  of  said  Washington  county  was  duly  given  by  the  plaintiff 
as  such  receiver,  as  prescribed  by  said  order,  and  in  the  manner 
directed  thereby. 

19.  That  certain  stockholders  of  said  Thresher  Company  who 
duly  intervened  in  said  last-mentioned  action,  and  objected  to  the 
issuance  of  said  last-mentioned  order  or  decree  and  the  levy  of 
any  assessment,  duly  prosecuted  an  appeal  from  said  last-men- 
tioned order  or  decree  to  the  supreme  court  of  said  state  of  Min- 
nesota; that  said  appeal  was  duly  heard  and  considered  by  said 
supreme  court;  and  that  at  the  April  term,  A.  D.  1903,  of  said 
court  judgment  was  rendered  and  entered  in  said  matter  in  and 
by  said  supreme  court,  determining  and  adjudging  that  the  said 
order  or  decree  so  appealed  from  be  in  all  things  affirmed. 


116  SUITS  AT  LAW. 

20.  That  the  plaintiff  gave  notice  of  the  decision  and  judgment 
of  said  supreme  court  in  the  matter  of  said  order  or  decree  by 
maiHng  a  copy  of  said  order  and  of  the  opinion  of  said  supreme 
court  to  each  stockholder  of  said  Thresher  Company  whose  name 
and  address  were  known  to  the  plaintiff. 

21.  That  thereafter,  and  on  the  1st  day  of  Ma)'-,  1907,  the  plain- 
tiff, as  such  receiver,  duly  made  and  caused  to  be  filed  with  and 
presented  to  said  district  court  of  said  Washington  county,  accord- 
ing to  law,  a  further  petition  by  the  plaintiff  as  such  receiver, 
praying,  among  other  things,  that  said  court  might,  by  order  or 
judgment  in  said  action,  direct  and  levy  a  second  ratable  assess- 
ment upon  the  parties  liable  as  stockholders  of  said  Thresher 
Company,  for  such  further  and  additional  amount,  proportion  or 
percentage  of  the  liability  upon  or  on  account  of  each  share  of  the 
said  stock,  as  said  court  should  deem  proper  after  hearing  thereon, 
as  by  law  provided,  pursuant  to  the  provisions  of  said  chapter  272 
of  the  general  laws  of  Minnesota  for  the  year  1899,  as  herein- 
before set  forth,  and  praying  that  said  court  by  order  appoint  a 
time  for  hearing  such  petition  and  application,  and  direct  such 
notice  thereof  to  be  given  as  said  court  should  deem  proper. 

22.  That  on  the  said  1st  day  of  May,  1907,  said  court  duly  made 
and  entered  its  order  in  said  last-mentioned  action  in  pursuance  of 
the  provisions  of  said  chapter  272  of  the  laws  of  1899;  that  notice 
of  said  last-mentioned  order  was  duly  given  in  the  manner  pre- 
scribed by  said  order,  such  notice  being  duly  published  and  served 
or  mailed  as  therein  directed ;  and  that  a  copy  of  said  order  was 
duly  mailed  to  the  defendant  herein  on  or  before  the  15th  day  of 
May,  1907.  And  that  said  matter  having  duly  come  on  for  hear- 
ing on  the  11th  day  of  June,  1907,  at  which  time  evidence  was 
introduced  by  the  receiver  and  the  said  matter  was  submitted  to 
the  court  by  counsel  for  the  receiver,  and  no  opposition  was  made 
thereto  on  behalf  of  any  of  the  stockholders  of  said  Thresher  Com- 
pany, and  it  thereupon  being  made  to  appear  to  the  satisfaction  of 
the  court  by  said  last-mentioned  petition  and  the  evidence  intro- 
duced at  said  hearing  that,  by  reason  of  the  insufficiency  of  said 
first  assessment  to  that  end,  and  the  inability  of  the  receiver  to  en- 
force the  same  against  a  large  number  of  stockholders,  and  for 
other  causes,  it  was  necessary  and  desirable  and  for  the  interest  of 
creditors  that  another  and  further  and  additional  assessment  upon 


DECLARATIONS  AND  PETITIONS.  117 

or  against  said  stock  be  levied,  the  said  court  then  and  thereupon 
directed  and  levied  a  further  and  additional  assessment  for  such 
amount,  proportion  and  percentage  of  the  liability  upon  or  on 
account  of  each  share  of  said  stock,  as  said  court  in  its  disrretion 
deemed  propef,  and  then  and  thereupon  duly  made  and  entered  its 
further  order  or  decree  in  said  action  therefor,  and  to  that  end,  a 
true  copy  of  which  said  order  or  decree  is  hereto  annexed,  marked 
"Exhibit  B,"  and  hereby  referred  to  and  made  a  part  hereof  as 
fully  as  if  set  up  at  length  herein,  and  said  last-mentioned  order 
has  never  been  in  any  manner  reversed,  modified  or  set  aside. 

2Z.  That  said  court,  in  and  by  said  last-mentioned  order  or 
decree,  adjudged  that  a  further  assessment  of  sixty-four  (64)  per 
cent,  of  the  par  value  of  each  share  of  the  capital  stock  of  said 
Thresher  Company — to-wit,  the  sum  of  thirty-two  dollars  ($32), 
on  each  share  thereof — be,  and  the  same  was  thereby,  assessed 
upon  and  against  each  and  every  share  of  said  capital  stock,  and 
upon  and  against  the  person,  corporation  or  party  liable  as  a  stock- 
holder of  said  Thresher  Company  for,  upon  or  on  account  of  said 
shares  of  stock,  and  that  each  and  every  person,  corporation  or 
party  liable  as  such  stockholder  of  said  Thresher  Company  pay, 
and  was  thereby  directed  to  pay  to  this  plaintiff  as  receiver  of  said 
Thresher  Company,  at  his  office  in  the  city  of  Stillwater,  county 
of  Washington  and  said  state  of  Minnesota,  within  thirty  days 
after  the  date  of  said  order,  the  said  sum  of  thirty-two  dollars 
($32)  for  and  on  account  of  each  and  every  share  of  said  stock 
for  or  upon  which  said  person,  corporation  or  party  was  liable  as 
a  stockholder  of  said  Thresher  Company  as  aforesaid,  and  that  in 
and  by  said  last-mentioned  order  or  decree  this  plaintiff,  as  such 
receiver,  was  ordered  to  give  due  notice  of  such  order  or  decree 
by  mailing  a  copy  of  the  same  within  ten  days  from  the  date  there- 
of to  each  stockholder  of  said  Thresher  Company  whose  name 
and  address  were  known  to  said  receiver.  That  the  amount  so 
aforesaid  adjudged  and  assessed  against  the  stockholders  of  said 
corporation,  was  a  just  and  proper  additional  amount,  in  addition 
to  the  amount  of  said  prior  assessment,  for  the  payment  of  its 
indebtedness  and  the  other  charges  which,  by  the  laws  of  Minne- 
sota, this  plaintiff  was  required  to  pay,  and  was  and  is  necessary 
for  that  purpose. 


118  SUITS  AT  LAW. 

24.  That  notice  of  said  last-mentioned  order  of  said  district 
court  of  said  Washington  county  was  duly  given  by  the  plaintiff 
as  such  receiver,  as  prescribed  by  said  order  and  in  the  manner 
directed  thereby. 

25.  That  in  and  by  the  authority  of  said  last-mentioned  order 
or  decree,  and  of  the  constitution  and  laws  of  the  state  of  Minne- 
sota and  of  the  United  States,  there  is  due  and  owing  from  the 
defendant  to  the  plaintiff,  as  such  receiver,  the  sum  of  twelve 
thousand  eight  hundred  dollars  ($12,80(>)  and  interest  thereon 
at  the  rate  of  six  per  cent,  per  annum  from  the  12th  day  of  July, 
1907;  that  more  than  thirty  days  have  elapsed  since  the  date  of 
said  last-mentioned  order,  and  that  the  plaintiff,  as  such  receiver, 
has  duly  demanded  of  the  defendant  payment  of  the  amount  due 
from  him  as  such  stockholder  of  said  Thresher  Company,  under 
and  pursuant  to  said  order;  that  the  defendant  has  failed  and  re- 
fused to  pay  the  same  or  any  part  thereof,  and  that  ho  part  thereof 
has  been  paid. 

Wherefore  the  plaintiff,  as  such  receiver,  demands  judgment 
against  the  defendant  for  the  sum  of  twelve  thousand  eight  hun- 
dred dollars  ($12,800)  and  interest  thereon  at  the  rate  of  six  per 
cent,  per  annum  from  the  11th  day  of  July,  1907,  and  for  the  costs 
and  disbursements  of  this  action. 

Wilson  &  Wallis, 

[Verification.]  '    Plaintiff's  Attorneys. 


No.  65. 

Declaration    against    Assignee    of    Shares    for    Assessment 

Thereon, 

[Caption-] 

First  Count.  In  a  plea  of  the  case  for  that  the  said  defendant 
heretofore,  to-wit,  on  the  1st  day  of  September,  A.  D.  1894,  at 
said  London,  to-wit,  at  Nashua,  in  the  state  of  New  Hampshire, 
in  the  United  States  of  America,  was  indebted  to  the  said  plaintiff 
in  a  large  sum  of  money,  to-wit,  seven  thousand  dollars,  for  a 
certain  call  and  assessment  made  by  said  company  in  pursuance  of 
its  charter  and  by-laws,  at  said  London,  to-wit,  on  the  10th  day 
of  July,  A.  D.  1894,  and  to  be  paid  on  the  1st  day  of  September, 
1894,  upon  the  defendant's  subscription  to  a  large  number,  to-wit. 


DECLARATIONS  AND  PETITIONS.  119 

one  thousand  shares  at  ten  pounds  sterling  each,  to-wit,  fifty 
dollars  each  of  the  capital  stock  of  said  company,  which  subscrip- 
tion had  heretofore  been  made  and  subscribed  in  due  form  by  said 
defendant,  to-wit,  at  said  Nashua,  and  of  the  said  assessment  and 
call  the  said  defendant  had  notice  at  Nashua,  in  the  state  of  New 
'Hampshire,  heretofore,  to-wit,  on  the  11th  day  of  July,  A.  D. 
1894,  and  thereafter,  to-wit,  on  the  1st  day  of  September,  A.  D. 
1894,  at  said  Nashua,  in  consideration  thereof  the  defendant  then 
and  there  promised  the  plaintiff  to  pay  the  said  sums  on  demand 
with  interest  at  the  rate  of  seven  per  cent,  per  annum  from  the 
time  the  same  became  due  and  payable  as  aforesaid. 

Yet,  though  often  requested,  the  defendant  has  never  paid  the 
saiH  several  sums  of  money,  or  any  of  them,  but  has  neglected  and 
refused  so  to  do. 

Second  Count.  And,  also,  in  a  further  plea  of  the  case  for  that 
the  plaintiff  avers  that  it  is  a  corporation  duly  organized  and 
existing  under  the  laws  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  and  having  its  principal  office  and  situs  at  the  city  of 
Londoi.  in  said  kingdom,  and  is  a  citizen  of  said  London ;  that  by 
the  provisions  of  the  articles  of  association  and  incorporation  of 
said  company  and  the  rules  and  regulations  of  said  corporation 
that  were  in  force  at  and  before  the  time  the  said  defendant  be- 
came the  subscriber  to  and  owner  of  the  shares  of  the  capital  stock 
of  said  corporation  as  hereinafter  set  forth,  the  said  corporation 
was  authorized  and  empowered  to  make  calls  upon  its  shareholders 
from  time  to  time  in  respect  to  all  moneys  unpaid  on  their  respec- 
tive shares,  and  each  shareholder  would  be  liable  to  pay  the 
amount  of  calls  so  made  as  to-  the  persons  and  at  the  times  and 
places  appointed  by  the  said  corporation,  and  that  shareholders 
should  be  liable  to  pay  interest  at  seven  per  centum  per  annum 
from  the  day  appointed  for  payment  of  such  call  to  the  time  of  the 
actual  payment  of  the  calls  in  arrears. 

And  the  plaintiff  further  avers  that  James  Lewis  Lombard, 
heretofore,  to-wit,  on  the  30th  day  of  August,  A.  D.  1883,  was 
the  owner  of  one  thousand  shares  of  ten  pounds  each,  English  or 
sterling  money,  par  value  of  the  capital  stock  of  the  said  corpora- 
tion, which  shares  had  theretofore  been  subscribed  for  and  pur- 
chased by  him,  the  said  Lombard,  and  the  same  had  been  legally 
transferred  to  him  and  his  heirs  and  assigns,  and  accepted  and 


120  SUITS  AT  LAW. 

held  by  him,  the  said  Lombard,  for  himself,  his  heirs  and  assigns, 
subject  to  the  articles  of  association  and  the  rules  and  regulations 
of  said  corporation  as  aforesaid ;  that  upon  said  one  thousand 
shares  two  pounds  each  of  English  money  had  been  paid  and  eight 
pounds  each  remained  unpaid. 

That  on  said  30th  day  of  August,  A.  D.  1883,  by  an  assignment 
in  writing  in  due  form  of  law,  the  said  James  Lewis  Lombard 
sold,  assigned,  transferred  and  delivered  to  the  defendant  his  said 
one  thousand  shares  of  the  capital  stock  of  the  plaintiff  corpora- 
tion, and  the  said  shares  were  then  and  there  accepted  by  it,  the 
said  defendant,  subject  to  the  articles  of  association  and  rules  and 
regulations  of  the  plaintiff  corporation,  and  said  assignment  was 
afterwards,  to-wit,  on  the  day  last  aforesaid,  at  the  request  of  the 
said  defendant,  accepted  by  said  plaintiff  and  duly  registered  on 
the  books  of  said  corporation,  of  which  the  defendant  then  and 
there  had  knowledge,  and  the  said  defendant,  ever  since  said  as- 
signment and  registration  last  aforesaid,  has  been  the  registered 
and  legal  holder  of  said  one  thousand  shares ;  and  in  consideration 
thereof,  then  and  there,  to-wit,  at  said  Bristol,  promised  to  pay 
said  plaintiff  all  such  calls  upon  said  shares  as  the  said  plaintiff 
might  make  from  time  to  time,  if  not  exceeding  one  pound  Eng- 
lish or  sterling  money  upon  each  share  at  any  one  time,  to  the 
person  and  at  the  times  appointed  by  the  said  corporation,  with 
interest  at  the  rate  of  seven  per  cent,  per  annum  from  the  day 
appointed  for  the  payment  of  such  call  to  the  time  of  the  actual 
payment  of  the  calls  in  arrears. 

And  the  plaintiff  further  avers  that  on  the  10th  day  of  July, 
A.  D.  1894,  the  said  corporation  agreeably  to  its  articles  of  asso- 
ciation and  rule  and  regulations  aforesaid,  made  a  call  upon  its 
shareholders,  including  the  defendant,  which  was  then  and  there 
the  legal  owner  and  holder  of  all  the  aforesaid  one  thousand 
shares,  of  one  pound  sterling  or  English  money  per  share,  payable 
on  the  first  day  of  September,  A.  D.  1894,  at  the  said  company's 
office  in  said  London,  of  which  said  call  the  said  defendant  had 
notice  at  said  Nashua  afterwards,  to-wit,  on  the  same  10th  day 
of  July,  A.  D.  1894. 

Yet  the  said  defendant,  though  often  requested,  has  not  paid 
the  amount  of  the  said  call  upon  its  said  shares  as  aforesaid  or 
any  part  thereof. 


DECLARATIONS  AND  PETITIONS.  121 

Third  Count.  And  also  in  a  further  plea  of  the  case  for  that 
the  said  defendant  heretofore,  to-wit,  on  the  2nd  day  of  Decem- 
ber, A.  D.  1895,  at  said  London,  to-wit,  at  Nashua,  in  the  state  of 
New  Hampshire,  in  the  United  States  of  America,  was  further 
indebted  to  the  said  plaintiff  in  a  large  sum  of  money,  to-wit,  eight 
thousand  dollars,  for  a  certain  call  and  assessment  made  by  said 
company  in  pursuance  of  its  charter  and  by-laws,  at  said  London, 
to-wit,  on  the  10th  day  of  July.  A.  D.  1895,  and  to  be  paid  on  the 
2nd  day  of  December,  A.  D.  1895,  upon  the  defendant's  subscrip- 
tion to  a  large  number,  to-wit,  one  thousand  shares  at  ten  pounds 
sterling  each,  to-wit,  fifty  dollars  each  of  the  capital  stock  of  said 
company,  which  subscription  had  theretofore  been  made  and  sub- 
scribed in  due  form  by  said  defendant,  to-wit,  at  Nashua,  and  of 
the  said  assessment  and  call  the  said  defendant  had  notice  at 
Nashua,  in  the  state  of  New  Hampshire,  heretofore,  to-wit,  on 
the  2nd  day  of  December,  A.  D.  1895,  and  thereafter,  to-wit,  at 
said  Nashua,  on  the  2nd  day  of  December,  A.  D.  1895,  in  consid- 
eration thereof,  the  defendant  then  and  there  promised  the  plaintiff 
to  pay  said  sums  on  demand  with  interest  at  the  rate  of  seven  per 
cent,  per  annum  from  the  time  the  same  became  due  and  payable 
as  aforesaid.  Yet  though  often  requested,  the  defendant  has  never 
paid  said  several  sums  of  money,  or  any  of  them,  but  has  neglected 
and  refused  so  to  do,  to  the  damage  of  the  said  plaintiff  (as  it 
says)  the  sum  of  fourteen  thousand  dollars. 

A.  B., 
Attorney. 


No.  66. 

Action  in  Trespass  by  Minor  by  Next  Friend  and  by  Next 
Friend  in  His  Own  Right — Plaintiffs'  Statement. 

[Caption-] 

Alvin  Chesko,  by  his  father  and  next  friend,  Thomas  Chesko, 
and  Thomas  Chesko  in  his  own  right,  citizens,  residents  and  in- 
habitants of  the  state  of  Pennsylvania,  by  their  counsel,  O'Brien 
&  Kelley,  complain  in  this  action  of  trespass  against  the  Delaware 
and  Hudson  Company,  a  corporation  organized  and  existing  under 
the  laws  of  the  state  of  New  York,  and  a  citizen,  resident  and 
inhabitant  thereof,  and  say  : 


122  SUITS   AT  LAW. 

On  the  days  and  dates  hereinafter  mentioned  the  defendant,  the 
Delaware  and  Hudson  Company,  was  a  corporation  oi  the  state 
of  New  York  and  a  citizen,  resident  and  inhabitant  thereof,  and 
was  in  possession  and  operated  a  certain  machine  shop  situate  on 
a  street  known  and  called  East  Market  street,  which  was  then  and 
there  a  much-traveled  thoroughfare  in  the  city  of  Scranton,  county 
of  Lackawanna  and  middle  district  of  Pennsylvania,  and  said 
machine  shop  was  then  and  there  equipped  with  certain  dangerous 
machinery,  which  said  machinery  was  located  on  the  first  floor 
thereof  at  and  near  a  certain  doorway  which  opened  at  and  near 
the  sidewalk  of  said  East  Market  street  aforesaid. 

Thereupon  it  became  the  duty  of  the  defendant  to  maintain  said 
machinery  so  that  it  might  not  attract  to  the  same  children  who 
might  be  lawfully  passing  along  said  street ;  to  refrain  from  in- 
viting, permitting,  allowing  or  suffering  children  as  aforesaid  to 
come  at  or  near  said  machinery  ;  to  maintain  said  machinery  in 
such  condition  that  it  might  not  injure  any  person  who  might  be 
lawfully  near  the  same;  and  to  properly  guard  said  machinery; 
and  to  guard  the  gates,  doorways  and  entrances  to  said  machine 
shop  where  said  dangerous  machinery  was  in  order  that  children 
of  tender  years  like  said  plaintiff,  Alvin  Chesko,  could  not  get 
near,  about,  upon  and  around  said  machinery. 

Yet  the  said  defendant  neglected  its  aforesaid  duties  and  every 
of  them  and  by  reason  thereof,  to-wit,  on  the  26th  day  of  October, 
A.  D.  1911,  Alvin  Chesko,  a  minor  of  the  age  of  six  years,  while 
passing  along  the  sidewalk  of  the  aforesaid  street,  was  then  and 
there  attracted  to  said  machinery  by  the  condition  of  the  same, 
and  was  then  and  there  invited  by  the  servants  of  the  defendant 
in  charge  of  the  same  to  pass  at  and  near  said  machinery ;  and  was 
then  and  there  by  the  servants  of  the  defendant  in  charge  of  the 
same  suffered,  permitted  and  allowed  to  be  and  remain  near  said 
machinery;  and  said  defendant  then  and  there  neglected  to  main- 
tain said  machinery  in  .safe  and  proper  condition  for  persons  who 
might  be  at  and  near  the  same ;  and  said  defendant  then  and  there 
neglected  to  properly  guard  said  machinery ;  and  said  defendant 
then  and  there  neglected  to  have  the  doors,  gates  and  entrances 
closed  leading  into  said  machine  shop,  and  then  and  there  neg- 
lected to  have  said  dangerous  machinery  enclosed  and  guarded  so 


DECLARATIONS  AND  PETITIONS.  123 

that  the  said  plaintiff,  Alvin  Chesko,  could  not  get  upon,  near  and 
close  to  the  same ;  so  that  said  Alvin  Chesko,  while  passing  along 
the  aforesaid  street,  then  and  there  passed  through  the  said  door- 
way into  said  machine  shop  and  came  in  contact  with  said  ma- 
chinery and  was  caught  therein  with  great  violence  and  suffered 
the  loss  of  part  of  his  hand. 

By  reason  of  the  negligence  of  the  defendant  as  aforesaid,  Alvin 
Chesko,  one  of  the  plaintiffs,  became  injured  in  his  head,  neck, 
chest,  abdomen,  back,  spine,  hips,  legs,  arms,  feet,  hands,  muscles 
and  nerves,  and  vital  organs,  and  was  confined  to  his  bed  by  reason 
of  said  illness  for  a  long  space  of  time,  and  in  the  manner  afore- 
said became  then  and  there  seriously  and  permanently  injured, 
and  by  reason  of  said  injuries  suffered,  does  suffer  and  always 
will  suffer  great  bodily  and  mental  pain  and  anguish,  and  by 
means  of  the  premises  was  thereby  hindered,  and  is  and  always 
will  be  hindered  and  prevented  from  transacting  his  lawful  affairs 
and  business. 

The  other  plaintiff,  Thomas  Chesko,  father  of  the  aforesaid 
plaintiff,  by  reason  of  the  premises  was,  is  and  always  will  be 
deprived  of  the  earnings,  gains,  profits  and  advantages  which  he 
should  and  otherwise  would  have  acquired  and  derived  from  the 
said  son  until  he  should  arrive  at  the  age  of  twenty-one  (21)  years 
and  afterwards  had  it  not  been  for  his  injury  as  aforesaid,  due 
to  the  negligence  of  the  defendant  as  aforesaid ;  and  was  further 
damaged  in  that  he  was  compelled  and  always  will  be  compelled 
to  expend  large  sums  of  money  in  nursing,  medicines  and  medical 
attendance. 

Wherefore,  the  plaintiffs  bring  this  suit  to  recover  their  dam- 
ages thus  sustained,  to-wit,  damages  in  the  sum  of  twenty  thou- 
sand ($20,000)  dollars. 

O'Brien  &  Kelly, 
Counsel  for  Plaintiffs. 


124  SUITS  AT  LAW. 

No.  67. 

Petition  to  Recover  on   Reparation  Order  of  the  Interstate 
Commerce  Commission,  and  Praecipe. 
[Caption.] 
The  petition  of  the  above-named  plaintiff  respectfully  shows : 

I.  That  the  petitioner  is  and  was  at  the  times  herein  alleged  a 
corporation  duly  organized  and  existing  under  the  laws  of  the 
state  of  Ohio,  residing  in  the  southern  district  of  Ohio,  Western 
Division,  and  chiefly  engaged  in  the  business  of  buying  and  selling, 
and  dealing  in  old  rails  and  other  scrap  iron. 

II.  That  the  defendant,  Morgan's  Louisiana  &  Texas  Railroad 
&  Steamship  Company,  is  a  corporation  duly  organized  and  exist- 
ing under  the  laws  of  the  state  of  Louisiana ;  that  the  Louisiana 
Western  Railroad  Company  is  a  corporation  duly  organized  and 
existing  under  the  laws  of  the  state  of  Louisiana ;  that  the  Texas 
&  New  Orleans  Railroad  Company  is  a  corporation  duly  organ- 
ized and  existing  under  the  laws  of  the  state  of  Texas ;  that  the 
defendant,  the  Illinois  Central  Railroad  Company,  is  a  corporation 
organized  and  existing  under  the  laws  of  the  state  of  Illinois. 

That  the  defendants  are  and  were  at  the  times  herein  alleged 
common  carriers  engaged  in  the  business  of  transporting  passen- 
gers and  property  by  railroad  by  continuous  carriage  or  shipment 
between  points  in  the  state  of  Texas  and  points  in  the  state  of 
Illinois,  and  are  and  were  particularly  engaged  in  the  transporta- 
tion of  scrap  iron,  in  carloads,  from  Houston,  Texas,  to  Chicago, 
Illinois,  and  as  such  common  carriers  were  and  are  subject  to  the 
provisions  of  the  act  to  regulate  commerce,  approved  February  4, 
1887,  and  all  acts  amendatory  thereof  and  supplementary  thereto. 

III.  That  the  defendants,  during  the  months  of  October  and 
November,  in  the  year  nineteen  hundred  and  twelve,  in  and  by 
their  tariff  known  and  designated  as  "Leland,  I.  C.  C.  No.  947," 
charged  and  exacted  a  joint  through  rate  of  thirty  cents  per  hun- 
dred pounds  on  scrap  iron,  in  carloads,  from  Houston,  Texas,  to 
Chicago,  Illinois ;  that  while  so  charging  said  joint  through  rate 
of  thirty  cents  per  hundred  pounds  the  defendants,  by  their  indi- 
vidual tariffs  hereinafter  specified,  maintained  a  lower  combina- 
tion of  rates  than  thirty  cents  per  one  hundred  pounds  on  scrap 


DECLARATIONS  AND  PETITIONS.  125 

iron  from  Houston,  Texas,  to  Chicago,  Illinois ;  that  the  said 
lower  combination  of  rates  was  published  in  "Southwestern  Lines 
Tariff,  I.  C.  C.  No.  945,"  and  "Emerson  Tariff,  I.  C.  C.  No.  10," 
the  former  naming  a  rate  of  nine  and  one-half  cents  per  one  hun- 
dred pounds  on  scrap  iron  from  Houston,  Texas,  to  New  Orleans, 
Louisiana,  when  destined  beyond,  and  the  latter  naming  a  rate  of 
three  dollars  and  thirty-one  cents  per  net  ton  on  scrap  iron  from 
New  Orleans,  Louisiana,  to  Chicago,  Illinois ;  that  by  reason  of 
the  defendants  charging  such  higher  joint  rate  than  the  lower 
combination  on  New  Orleans  in  effect  between  the  same  points 
and  over  the  same  lines  of  railroad,  the  defendants  violated  the 
provisions  of  sections  1,  3  and  4  of  the  act  to  regulate  commerce. 

IV.  That  during  the  months  of  October  and  November,  1912, 
the  plaintiff  shipped  from  Houston,  Texas,  to  Chicago,  Illinois,  a 
number  of  carloads  of  scrap  iron  upon  which  it  paid  the  joint 
through  rate  of  thirty  cents  per  one  hundred  pounds,  that  the 
charging  by  the  defendants  of  such  higher  joint  through  rate  than 
the  lower  combination  on  New  Orleans  contemporaneously  in 
effect  subjected  the  plaintiff  to  the  payment  of  rates  which  were 
unjust  and  unreasonable,  unjustly  discriminatory,  and  in  violation 
of  section  4,  and  resulted  in  its  direct  damage  and  injury. 

V.  That  the  plaintiff  did  file  a  petition  before  the  interstate 
commerce  commission,  in  the  case  known  and  designated  on  the 
dockets  of  said  tribunal  as  "The  Isaac  Joseph  Iron  Company  v. 
Morgan's  Louisiana  &  Texas  Railroad  &  Steamship  Company; 
Louisiana  Western  Railroad  Company;  Texas  &  New  Orleans 
Railroad  Company,  '  and  Illinois  Central  Railroad  Company, 
Docket  No.  6924,"  complaining  of  the  aforesaid  alleged  violations 
of  the  act  to  regulate  commerce  and  praying  that  the  defendants 
above  named  might  be  severally  required  to  answer  the  charges 
therein  contained ;  that  after  due  hearing  and  investigation  an 
order  be  made  commanding  the  said  defendants  and  each  of  them 
to  cease  and  desist  from  the  aforesaid  alleged  violations  of  the 
act  to  regulate  commerce,  and  to  establish  and  put  in  force,  and 
apply  as  maximum  in  the  future  to  the  transportation  of  scrap 
iron,  in  carloads,  from  Houston,  Texas,  to  Chicago,  Illinois,  a  rate 
no  higher  than  is  contemporaneously  maintained  by  their  indi- 
vidual tariffs  applying  to  the  transportation  of  scrap  iron  between 
the  same  points ;  and  also  to  pay  to  this  petitioner  by  way  of 


126  SUITS  AT  LAW. 

reparation  for  the  unlawful  charges  hereinbefore  described  such 
sum  as,  in  view  of  the  evidence  to  be  adduced  therein,  the  com- 
mission might  consider  the  petitioner  entitled  to,  and  that  such 
order  or  further  order  or  orders  might  be  made  as  the  commission 
might  consider  proper  in  the  premises  and  the  petitioner's  cause 
might  appear  to  require. 

VI.  Whereupon  the  aforesaid  being  at  issue  upon  complaint 
and  answers  on  file  with  the  interstate  commerce  commission,  and 
having  been  duly  heard  and  submitted  by  the  parties  thereto,  and 
full  investigation  of  the  matters  and  things  involved  therein  hav- 
ing been  had,  the  commission  did,  on  the  2nd  day  of  November, 
A.  D.  1915,  make  an  order  authorizing  and  directing  the  above- 
named  defendants  to  pay  unto  the  petitioner.  The  Isaac  Joseph 
Iron  Company,  on  or  before  December  31,  1915,  the  sum  of 
$682.34  with  interest  thereon  at  the  rate  of  6  per  cent,  per  annum 
from  December  6,  1912,  as  reparation  on  account  of  the  aforesaid 
alleged  excessive  rate.  That  the  aforesaid  order  and  opinion  of 
the  interstate  commerce  commission  is  attached  hereto  and  made 
a  part  hereof. 

VII.  That  the  above-named  defendant  railroads  did  not  comply 
with  the  aforesaid  order  of  the  interstate  commerce  commission 
within  the  time  limit  in  such  order  and  continue  to  refuse  to  pay 
"''» this  petitioner  the  sum  specified  therein.  (1) 

VIII.  Wherefore,  your  petitioner  prays  that  it  may  recover 
from  the  defendants  the  sum  of  $682.34  with  interest  thereon  at 
the  rate  of  6  per  cent,  per  annum,  as  specified  in  the  order  of  the 
interstate  commerce  commission,  and  that  an  order  be  issued  com- 
manding the  said  defendants  to  pay  such  sum  on  or  before  a  day 
certain  ;  and  that  your  petitioner  be  allowed  a  reasonable  attorney's 
fee,  to-wit:  the  sum  of  five  hundred  dollars,  to  be  taxed  and  col- 
lected as  a  part  of  the  costs  of  the  suit  as  is  authorized  by  the 
statute  in  such  case  made  and  provided. 

A.  B., 
Attorney  for  the  PlaintiflF. 

Praecipe. 
To  the  Clerk  of  the  Court: 

Issue  summons  to  all  of  the  within-named  defendants  return- 
able according  to  law.    Indorse  action  for  the  recovery  of  money 


DECLARATIONS  AND  PETITIONS.  127 

only  and  for  judgment  against  all  the  defendants  for  the  costs 
taxed  in  this  suit,  including  $500  as  attorney's  fee,  and  for  such 
other  and  further  relief  to  which  plaintiff  may  be  entitled. 

Note:  In  issuing  summons  to  the  defendants,  it  will  be  neces- 
sary to  issue  separate  summons  to  the  United  States  marshals  in 
the  districts  in  which  the  defendants  have  their  principal  operating 
offices,  as  follows,  to-wit : 

To  the  United  States  Marshal  in  the  district  of  Illinois,  wherein 
Chicago,  Illinois,  is  located,  as  to  the  defendant  the  Illinois  Cen- 
tral Railroad  Company ;  to  the  United  States  marshal  in  the  dis- 
trict of  Louisiana,  wherein  New  Orleans  is  located  as  to  the  de- 
fendant the  Louisiana  Western  Railroad  Company;  to  the  United 
States  marshal  in  the  district  of  Louisiana,  wherein  New  Orleans 
is  located,  as  to  the  defendant  Morgan's  Louisiana  &  Texas  Rail- 
road &  Steamship  Company ;  to  the  United  States  marshal  in  the 
district  of  Texas,  wherein  Houston  is  located,  as  to  the  defendant 
Texas  &  New  Orleans  Railroad  Company. 

(1)  Upon  failure  of  the  carrier  to  comply  with  an  order  of  tha 
interstate  commerce  commission  to  make  reparation  in  damages,  the 
complainant  or  any  person  in  whose  favor  the  order  was  made  may 
bring  suit  upon  said  order  in  a  United  States  district  court  in  the 
district  of  his  residence,  and  he  shall  file  a  petition  setting  forth 
briefly  the  causes  for  which  he  claims  damages  and  the  order  of  the 
commission  in  the  premises.  34  Stat.  L.  584,  36  Stat.  L.  539,  38 
Stat.  L.  219. 

Such  suit  must  be  filed  in  the  district  court  within  one  year  from 
the  date  of  the  order,  "and  not  after."    34  Stat.  L.  584. 

"In  such  suit  all  parties  in  whose  favor  the  commission  may  have 
made  an  award  of  damages  by  a  single  order  may  be  joined  as  plain- 
tiffs, and  all  the  carriers  parties  to  such  order  awarding  such  damages 
may  be  joined  as  defendants,  and  such  suit  may  be  maintained  by 
such  joint  plaintiffs  and  against  such  joint  defendants  in  any  district 
where  any  one  of  such  joint  plaintiffs  could  maintain  such  suit  against 
any  one  of  such  joint  defendants."  Act  to  Regulate  Commerce  as 
amended.  Sec.  16.  Process  in  such  suits  may  run,  be  served  and 
be  returnable  anywhere  in  the  United  States,  38  Stat.  L.  219. 

Such  suit  may  be  brought  in  a  state  court.  Darnell  v.  Illinois 
Central  R.  Co..  225  U.  S.  243,  56  L.  Ed.  1072. 

Such  suit  is  not  on  the  award  as  such,  to  recover  the  amount  of 
damages  awarded,  but  is  a  plenary  suit  for  damages  actually  in- 
curred by  the  plaintiff  by  reason  of  the  violation  by  the  carrier  of 
the  statute.  Lehigh  Valley  R.  Co.  v.  Clark,  207  Fed.  717,  125  C.  C. 
A.  235. 


128  SUITS  AT  LAW. 

The  petition  in  such  suit  must  set  forth  the  "causes  for  which  the 
complainant  claims  damages,  and  the  order  of  the  commission,"  and 
it  is  not  sufficient  to  set  forth  the  proceedings  of  the  commission 
alleging  these  causes.  Baer  Bros.  v.  Mercantile  Co.,  200  Fed.  614,  and 
further  in  this  case  it  is  said  that  "the  pleadings  must  tender  an 
issue  as  to  whether  the  rates  are  unreasonable,  discriminatory,  or 
otherwise  violative  of  law."  The  petition  need  not  allege  in  specific 
terms  that  the  plaintifT  was  damaged;  it  is  sufficient  to  set  forth 
at  large  all  the  facts  of  the  case  together  with  the  findings  of  the 
commission,  the  plaintiff's  right  to  reparation  for  the  alleged  wrongs, 
and  a  prayer  for  such  reparation.  Southern  Pacific  Co.  v.  Goldfield, 
etc.,  Co.,  220  Fed.  14,  135  C.  C.  A.  590. 

It  is  insufficient  to  allege  that  "said  commission,  agreeable  to  the 
provisions  of  the  law  in  that  regard,  duly  caused  a  properly  authen- 
ticated copy  of  its  said  report  together  with  the  order  aforesaid,  to 
be  delivered  to  the  said  defendant."  There  must  be  a  direct  aver- 
ment that  the  service  was  made  and  the  manner  thereof  in  terms 
so  clear  that  an  issue  of  fact  may  be  raised.  Baer  Bros.  Mercantile 
Co.  V.  D.  &  R.  G.  R.  R.,  200  Fed.  614. 

"If  the  order  is  not  complied  with,  the  plaintiff  may  have  recourse 
to  the  courts  (federal  or  state)  setting  forth  his  injury,  the  fact  of 
his  complaint  to  the  commission,  the  order  made  thereon  and  that 
it  has  not  been  complied  with.  In  the  words  of  the  statute,  the 
cause  then  proceeds  as  an  action  for  damages,  except  that  the  findings 
of  the  commission  are  made  evidence,  and  the  defendant  must  pay 
costs  and  counsel  fees."  Minds  v.  Penn.  R.  Co.,  237  Fed.  267,  270. 
Also  as  to  the  nature  of  the  action  on  the  order  of  the  commission, 
see  Hillsdale  Coal  and  Coke  Co.  v.  Penn.  R.  Co.,  237  Fed.  272. 


No.  68. 

(Another  more  elaborate  petition.) 
Complaint  against  Carriers  on  Award  of  Reparation  by  Inter- 
state Commerce  Commission. 

[Caption.] 

Comes  now  petitioner,  Ballou  and  Wright,  a  corporation  duly 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the 
state  of  Oregon,  with  its  principal  office  and  place  of  business  at 
the  city  of  Portland,  in  Multnomah  county,  state  of  Oregon, 
and  a  citizen  of,  and  domiciled  in,  the  said  state  of  Oregon,  and 
for  its  cause  of  action  against  said  respondents,  The  New  York, 
New  Haven  and  Hartford  Railroad  Company,  a  corporation, 
Boston  and  Albany  Railroad  Company,  a  corporation,  The  New 


DECLARATIONS   AND   PETITIONS.  129 

York  Central  and  Hudson  River  Railroad  Company,  a  corpora- 
tion, The  Michigan  Central  Railroad  Company,  a  corporation, 
Chicago  and  Northwestern  Railroad  Company,  a  corporation. 
Union  Pacific  Railroad  Company,  a  corporation,  Oregon  Short 
Line  Railroad  Company,  a  corporation,  Oregon-Washington  Rail- 
road and  Navigation  Company,  a  corporation,  alleges : 

I.  That  the  said  Ballon  and  Wright  is  now  and  was  at  all 
of  the  times  herein  mentioned  a  corporation  duly  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  state  of  Oregon, 
with  its  principal  office  and  place  of  business  at  the  city  of  Port- 
land, in  Multnomah  county,  state  of  Oregon,  and  as  such  cor- 
poration is  now  and  was  at  all  times  herein  mentioned  a  citizen 
of  and  domiciled  in  the  said  state  of  Oregon. 

II.  That  the  respondent.  Union  Pacific  Railroad  Company,  is 
now  and  was  at  all  the  times  herein  mentioned  a  corporation, 
duly  organized  and  existing  under  and  by  virtue  of  the  laws  of 
the  state  of  Utah,  with  its  principal  office  and  place  of  business 
at  Salt  Lake  in  the  said  state  of  Utah,  and  as  such  corpora- 
tion is  now  and  was  at  all  the  times  mentioned  herein  a  citizen 
of  and  domiciled  in  the  said  state  of  Utah. 

[And  so  for  all  the  defendants  as  far  as  known,  then  say  as 
follows:] 

VL  That  each  of  the  other  respondents  above  named  is  now 
and  at  all  the  times  mentioned  herein  was  a  corporation  duly 
organized  and  e.xisting  under  and  by  virtue  of  the  laws  of  one 
of  the  states  of  the  United  States,  with  its  principal  office  and 
place  of  business  therein,  Imt  the  petitioner  does  not  know  and 
is  unable  to  state  the  particular  state  of  the  United  States  wherein 
either  of  said  corporations  was  organized,  or  wherein  it  was  at 
any  time  or  is  now  e.xisting,  or  the  particular  state  of  which 
either  of  the  said  other  respondents  was  at  any  time  or  is  now 
a  citizen,  or  in  which  it  was  at  any  time  or  is  now  domiciled, 
but  petitioner  alleges :  That  each  of  the  said  other  corporations 
at  all  of  the  times  herein  stated  did  business  as  a  corporation  and 
in  its  corporate  name,  with  the  said  petitioner,  and  each  of  the 
said  other  respondents  should  and  of  right  ought  to  be  required 
either  to  set  out  fully  and  particularly  in  its  answer  to  this 
petition,  the  particular  states  wherein  it  was  incorporated  and 
organized  and  wherein  it  is  now  existing,  and  the  place  of  its 


130  SUITS   AT  LAW. 

principal  office  and  business  and  its  citizenship  and  domicile,  or 
each  of  the  said  other  respondents  should  and  of  right  ought  to 
be  estopped  from  denying  its  corporate  existence,  or  from  re- 
quiring petitioner  to  allege  either  the  place  where  either  of  said 
corporations  was  incorporated,  or  was  at  any  of  the  times  herein 
stated,  or  is  now,  existing,  or  the  place  of  its  principal  office  or 
business  or  domicile  or  citizenship ;  or  in  lieu  thereof  the  said 
petitioner  should  be  permitted  upon  leave  of  the  court  first 
obtained,  when  all  of  the  said  facts  are  discovered,  to  make 
al!  necessary  allegations  touching  said  matters.  That  J.  M. 
Dickinson  is  now  and  was  at  all  the  times  herein  stated  the 
duly  qualified  and  acting  receiver  of  the  said  Chicago,  Rock 
Island  and  Pacific  Railroad  Company. 

VII.  That  said  petitioner  is  now,  and  was  at  all  of  the  times 
herein  stated,  as  such  corporation,  engaged  in  the  business  of  a 
wholesale  and  retail  dealer  in,  and  in  the  sale  of,  motorcycles  and 
other  vehicles  and  merchandise,  with  its  principal  office  and 
place  of  business  at  the  city  of  Portland  in  Multnomah  county 
in  the  state  of  Oregon  ;  and  at  all  times  herein  stated  it  had  a 
large  and  extensive  trade  in  said  business  in  said  state  of  Oregon 
and  in  other  states  on  the  Pacific  coast. 

YIII.  That  each  of  the  respondents  above  named  was  at  all 
of  the  times  herein  stated,  and  it  is  now,  a  common  carrier, 
engaged  in  interstate  commerce  by  railroad,  and  in  the  trans- 
portation of  passengers  and  property  by  railroad,  for  hire  over 
its  lines  of  railways,  and  between  Armory  and  other  points  in  the 
state  of  Massachusetts  and  the  city  of  Portland  in  Multnomah 
county  and  other  points  in  the  state  of  Oregon,  and  other  states 
and  territories  of  the  United  States,  and  in  the  Dominion  of 
Canada ;  and  as  such  common  carrier,  each  of  the  said  respond- 
ents was  at  all  of  the  times  herein  stated,  and  it  is  now,  subject 
to  the  provisions  of  the  act  of  congress  of  the  United  States, 
entitled  an  act  to  regulate  commerce,  approved  February  4,  1887, 
and  acts  amendatory  thereof  and  supplementary  thereto. 

IX.,  That  the  said  petitioner  on  the  several  dates  hereinafter 
shown  and  set  forth,  caused  to  be  delivered  to  the  said  respond- 
ent. The  New  York.  New' Haven  and  Hartford  Railroad  Com- 
pany, at  Armory,  Massachusetts,  and  the  said  respondent  o:i 
the  said  several  dates  received  the  certain  carload  shipments  of 


DECLARATIONS  AND  PETITIONS.  131 

motorcycles  herein  shown,  for  transportation  and  delivery  to  the 
said  petitioner  at  Portland,  Oregon ;  and  thereafter  the  said 
respondent,  operating  with  said  other  respondents,  caused  each 
of  the  said  shipments  to  be  delivered  to  the  said  complainant 
and  petitioner  at  Portland,  Oregon,  between  April  1,  1911,  and 
January  24,  1913. 

X.  That  at  the  time  of  the  shipments  hereinafter  shown  and 
set  forth,  dated  respectively  March  24,  1911,  and  March  9,  1912, 
Transcontinental  Freight  Bureau  Westbound  Tariff  41,  I.  C  C. 
942,  issued  by  R.  H.  Countiss,  was  in  effect,  and  carried  a  first 
class  rate  of  $3.00  per  100  pounds,  and  the  said  first-class  rate 
from  Armory,  Massachusetts,  to  Portland,  Oregon,  then  estab- 
lished and  in  force  and  effect  was  $3.00  per  100  pounds;  and  at 
the  time  of  the  shipments  hereinafter  shown  and  set  forth  dated 
respectively  July  3,  1912,  August  21,  1912,  and  January  3,  1913, 
The  Transcontinental  Freight  Bureau  Westbound  Tariff  4-1, 
I.  C.  C.  942,  issued  by  R.  H.  Countiss,  was  in  effect  and  carried 
a  first-class  rate  of  $3.70  per  100  pounds,  and  the  first-class  rate 
from  Armory,  Massachusetts,  to  Portland,  Oregon,  then  estab- 
lished and  in  effect  was  $3.70  per  100  pounds. 

That  at  the  time  of  said  shipments  the  said  first-class  rates  as 
shown  by  said  tariff  were  and  are  just  and  reasonable  and  should 
have  been  applied  to  motorcycles  in  car  loads. 

XI.  That  the  said  respondents  charged  and  collected  and  the 
said  petitioner  paid  to  said  respondents,  under  protest,  on  each 
of  the  said  shipments  hereinafter  shown,  a  commodity  carload 
rate  of  $4.00  per  one  hundred  pounds,  which  said  charge  was 
and  is  excessive,  unjust  and  unreasonable,  and  in  violation  of 
said  act  to  regulate  commerce  and  the  acts  amendatory  thereof, 
and  supplementary  thereto,  and  particularly  section  one  thereof. 

XII.  That  the  following  is  a  detailed  statement,  as  to  each 
shipment  upon  which  reparation  is  herein  claimed  by  the  said 
petitioner  against  said  respondents,  showing: 

1.  Point  of  origin  of  shipment  and  date  thereorf. 

2.  Waybill -number  and  date  thereof. 

3.  Car  number  and  initial. 

4.  Carriers  interested  and  route  and  point  of  destination. 
.S.  The  weight  and  commodity  rate  charged  and  collected. 

6.  The  weight  and  first-class  rate  in  effect  and  applicabfe  to 


132  SUITS   AT   LAW. 

motorcycles  in  car  loads,  at  the  time  of  each  of  said  shipments, 
and  the  amount  which  should  have  been  charged  and  collected. 

7.  The  amount  of  reparation  due,  based  upon  the  first-class 
rate  in  effect  at  the  time  of  each  shipment. 

8.  Amount  of  overcharge. 

[Here  follo7vs  itemization,  and  then  follozvs:] 

XIII.  That  the  foregoing  shipments  consisted  of  five  carloads 
of  motorcycles  which  were  moved  over  the  lines  of  the  said 
respondents  as  hereinbefore  shown  and  mentioned.  That  the 
aggregate  weight  of  the  said  shipments  was  79,000  pounds;  and 
the  said  respondents  charged  and  collected,  and  the.  said  peti- 
tioner paid,  as  freight  for  said  service  a  commodity  rate  of 
$4.00  per  100  pounds,  or  the  total  sum  of  $3,160.00-  That  said 
petitioner  paid  to  said  respondents  under  protest,  all  of  the  said 
excessive,  unjust  and  unreasonable  freight  charges  for  said  serv- 
ice at  the  city  of  Portland,  Oregon,  between  April  4,  1911,  and 
February  1,  1913.  That  the  aggregate  weight  of  the  shipments 
made  on  March  25.  1911,  and  March  9,  1912,  respectively,  was 
32,300  pounds,  and  when  these  shipments  were  made  the  first- 
class,  which  should  have  been  applied  to  motorcycles  in  carloads 
from  Armory,  Massachusetts,  to  Portland,  Oregon,  was  $3.00 
per  100  pounds,  which  would  amount  to  the  total  sum  of  $969.00. 

That  the  aggregate  weight  of  the  shipments  made  July  3,  1912, 
August  22,  1912,  and  January  3,  1913,  respectively,  was  46,700 
pounds,  and  when  these  last  named  shipments  were  made  the 
first-class  rate  which  should  have  been  applied  to  motorcycles  in 
carloads  from  Armory,  Massachusetts,  to  Portland,  Oregon,  was 
$3.70  per  100  pounds,  which  would  amount  to  the  total  sum 
of  $1,727.90. 

That  based  upon  the  first-class  rate  v/hich  should  have  been 
applied  to  motorcycles  in  carloads  at  the  time  of  these  several 
shipments  the  amount  which  petitioner  should  have  paid  on  all  of 
the  said  shipments  was  the  total  sum  of  .$2,696.00  and  no  more. 

That  the  said  rate  charged  and  collected  by  the  said  respond- 
ents from  the  petitioner  was  excessive,  unjust  and  unreasonable 
to  the  extent  that  it  exceeded  the  said  first-class  rate  which 
should  have  been  applied  to  motorcycles  in  carloads  and  in  effect 
at  the  time  the  said  shipments  were  made.  That  the  difference 
between  the  amount  So  unjustly  and  unreasonably  charged  and 


DECLARATIONS  AND  PETITIONS.  133 

collected  by  the  said  respondents  and  the  amount  the  said  peti- 
tioner would  have  paid  at  the  said  first-class  rate  which  should 
have  been  applied  to  motorcycles  in  carloads  and  then  in  effect 
was  and  is  the  sum  of  $463-10. 

XIV.  That  by  reason  of  the  said  excessive,  unjust  and  un- 
reasonable charges  made  and  collected  by  said  respondents  for 
the  said  service,  the  said  petitioner  has  been  damaged  in  the 
sum  of  $463.10,  being  the  difference  between  the  amount  actually 
charged  and  collected  by  the  said  respondents  and  paid  by  the 
said  petitioner,  and  the  reasonable  amount  which  the  said  peti- 
tioner would  have  paid  based  upon  the  said  first-class  rate  at 
the  time  of  said  shipments  which  should  have  been  applied  to 
motorcycles  in  carloads. 

XV.  That  on  the  10th  day  of  March,  1913,  the  said  petitioner 
filed  its  petition  with  the  interstate  commerce  commission  of 
the  United  States,  against  the  said  respondents  and  the  other 
respondents  mentioned  in  the  title  of  this  cause,  which  said  peti- 
tion is  number  5616  in  the  files  of  the  said  commission,  and 
is   in   writing  in  words  and  figures  as   follows,   to-wit: 

[Omit  the  petition  and  proceed:] 

XVI.  That  thereafter  such  proceedings  were  had  and  taken  by 
the  said  interstate  commerce  commission  in  said  cause  that  on  the 
14th  day  of  August.  1914,  the  said  commission  made  and  entered 
its  decision  and  order  of  reparation  in  writing  in  words  and 
figures  as  follows,  to-wit : 

[Omit  the  same  and  proceed:] 

That  no  application  has  ever  been  made  by  the  said  respond- 
ents or  either  thereof  to  set  aside  said  report,  decision  and  order, 
or  either  thereof,  of  the  said  commission,  or  for  a  rehearing  of 
said  cause,  or  of  any  matter  determined  therein,  nor  has  the 
said  commission  ever  granted  a  rehearing  of  said  cause,  or 
reversed,  changed,  or  modified  the  said  report,  decision  and 
order,  or  either  thereof,  but  the  same  is  now  in  full  force  and 
effect. 

XVII.  That  in  and  by  the  terms  of  the  said  order  of  repara- 
tion the  said  respondents  mentioned  in  this  cause  of  action  were 
required  to  pay  unto  the  said  petitioner  on  or  before  the  1st  day 
of  October,  1914,  the  sum  of  $463.10  with  interest  thereon  at 
the  rate  of  6%  per  annum  from  January  1,  1913,  as  reparation 


134  SUITS    AT   LAW. 

on  account  of  the  said  unreasonable  rate  charged  for  the  trans- 
portation of  motorcycles  in  carloads  from  Armory,  Massachu- 
setts, to  Portland,  Oregon. 

That  the  said  report  and  order  of  reparation  were,  immediately 
after  the  dates  thereof,  served  upon  the  said  respondents  and 
an  immediate  demand  was  made  upon  them  that  they  comply 
with  the  said  order  of  reparation  of  the  said  interstate  commerce 
commission  and  pay  unto  the  said  petitioner  the  said  sum  of 
$463.10  with  interest  thereon  at  the  rate  of  6%  per  anunm  from 
the  1st  day  of  January,  1913,  as  reparation  on  account  of  the 
said  unjust,  excessive  and  unreasonable  rate  charged  and  col- 
lected by  the  said  respondents  as  aforesaid,  but  petitioner  alleges : 
That  the  said  respondents  have,  and  each  of  them  has,  failed, 
neglected  and  refused,  and  each  of  them  still  fails,  neglects  and 
refuses  to  comply  with  the  said  order  of  the  said  interstate  com- 
merce commission,  or  to  obey  the  provisions  thereof,  or  to  pay 
the  said  petitioner  the  said  sum  of  $463.10  with  said  interest 
or  any  part  thereof. 

XVIII.  That  the  sum  of  $300.00  is  a  reasonable  attorney's 
fee  in  this  action,  to  be  taxed  and  collected  as  a  part  of  the 
costs  thereof. 

XIX.  That  there  is  now  due  and  owing  the  said  petitioner  from 
the  said  respondents  the  said  sum  of  $463.10,  together  with 
interest  thereon  at  the  rate  of  6%  per  annum  from  January  1, 
1913,  and  the  further  sum  of  three  hundred  dollars,  a  reason- 
able attorney's  fee  herein. 

.  Wherefore  petitioner  demands  judgment  against  the  said  re- 
spondents [naming  them]  for  the  said  sum  of  $463.10  with 
interest  thereon  at  the  rate  of  6%  per  annum  from  the  1st  day 
of  January,  1913,  and  the  further  sum  of  $300.00  as  attorney's 
fee  herein  and  for  its  costs  and  disbursements  in  this  action. 

A.  B.  and  C  D., 
[Verification.]  Attorneys  for  Petitioner. 


DECLARATIONS  AND  PETITIONS.  135 

No.  69. 

Declaration  in  Assumpsit  for  Goods  Sold  and  Delivered. 

[Caption.] 

The  Toledo  and  Ohio  Central  Railway  Company,  which  is  a 
corporation  duly  created,  organized  and  existing  under  the  laws 
of  the  state  of  Ohio,  and  a  citizen  of  the  state  of  Ohio,  com- 
plains of  The  Chesapeake  and  Ohio  Coal  and  Coke  Company, 
which  is  a  corporation  duly  created,  organized  and  existing 
under  the  laws  of  the  sitate  of  West  Virginia,  and  a  citizen  and 
resident  of  the  state  of  West  Virginia,  and  the  southern  district 
thereof,  which  has  been  summoned,  etc.,  of  a  plea  of  trespass  on 
the  case  in  assumpsit:  For  that  the  said  defendant  heretofore, 
to-wit,  on  the  first  day  of  October,  1912,  was  indebted  to  said 
plaintiff  in  the  sum  of  $20,000.00  for  the  work  and  labor,  care 
and  diligence  of  the  said  plaintiff  by  the  said  plaintiff  before  that 
time  done,  performed  and  bestowed  in  and  about  the  business 
of  said  defendant,  and  at  its  the  said  defendant's  .special  instance 
and  request ;  and  also,  in  the  further  sum  of  $20,000.00,  for  divers 
goods,  wares  and  merchandise,  by  the  said  plaintiff  before  that 
time  sold  and  delivered  to  the  said  defendant  at  its  the  said 
defendant's  like  special  instance  and  request ;  and  also,  in  the 
further  sum  of  $20,000.00  for  money  by  the  said  plaintiff  before 
that  time  lent  and  advanced  to,  and  paid,  laid  out,  and  expended 
for  the  said  defendant  and  at  its  the  said  defendant's  like  special 
instance  and  request ;  and  also,  in  the  further  sum  of  ;i^20,000.00 
for  other  money  by  the  said  defendant  before  that  time  had 
and  received  to  and  for  the  use  of  the  said  plaintiff:  And  being 
so  indebted,  it,  the  said  defendant,  in  consideration  thereof,  after- 
wards, to-wit,  on  the  day  and  year  aforesaid,  undertook,  and 
then  and  there  faithfully  promised  the  .said  plaintiff,  to  pay  it 
the  said  several  sums  of  money  in  this  account  mentioned,  when 
it,  the  said  defendant,  should  be  thereunto  afterwards  requested. 

And  for  that,  also,  the  said  defendant  afterwards,  to-wit,  on 
the  day  and  year  last  aforesaid,  accounted  with  the  said  plaintiff 
of  and  concerning  divers  other  large  sums  of  money,  from  the 
said  defendant  to  the  said  plaintiff  before  that  time  due  and 
owing,  and  then  in  arrear  and  unpaid :  and  upon  such  accounting, 
the  said  defendant  was  then  and  there  found  to  be  in  arrear  and 


136  SUITS   AT  LAW. 

indebted  to  the  said  plaintiff  in  tlie  further  sum  of  $20,000.00, 
and  being  so  found  in  arrear  and  indebted  to  the  said  plaintiff, 
the  said  defendant  in  consideration  thereof,  afterwards,  to-wit, 
on  the  day  and  year  last  aforesaid,  undertook,  and  then  and 
there  faithfully  promised  the  said  plaintiff  to  pay  it  said  last 
mentioned  sum  of  money  when  it  should  be  thereunto  afterwards 
requested. 

Nevertheless,  the  said  defendant,  not  regarding  its  several 
promises  and  undertakings,  or  any  or  either  of  them,  but  con- 
triving and  intending  to  deceive  and  defraud  the  said  plaintiff, 
has  not  yet  paid  the  said  several  sums  of  money,  or  any  or  either 
of  them,  or  any  part  thereof,  to  the  said  plaintiff  (although  often 
requested  so  to  do),  but  the  same  to  pay  the  said  defendant  has 
wholly  neglected  and  refused,  and  still  does  neglect  and  refuse, 
to  tli<?  damage  of  the  plaintiff  of  $20,000.00  and  therefore  it 
brings  suit,  etc. 

Frank  S.  Lewis  and 

Brown,  Jackson  &  Knight,  p.  q. 


No.  70. 

Suit  against  Company  on  Fidelity  Bond. 

[Caption.] 

Plaintiff,  as  superintendent  as  aforesaid,  claims  of  the  defend- 
ant the  sum,  to-wit,  seventy-five  hundred  dollars  damages  for 
the  breach  by  it  of  a  bond  or  agreement  entered  into  by  it  on, 
to-wit,  the  15th  of  April,  1914.  whereby  the  defendant  agreed, 
for  a  consideration  or  reward  paid  to  it  by  the  Clanton  Bank, 
Clanton,  Alabama,  that  it  would,  within,  to-wit,  three  months 
next  after  satisfactory  proof  of  loss,  make  good  and  reimburse 
the  said  Clanton  Bank,  Clanton,  Alabama,  such  pecuniary  loss 
as  said  bank  may  sustain  by  reason  of  the  fraud  or  dishonesty 
of  E.  A.  Matthews,  then  employed  by  the  said  Bank  in  the 
capacity  of  cashier,  the  said  fraud  or  dishonesty  to  be  in  con- 
nection with  the  duties  of  the  office  or  position  held  by  said 
■Matthews,  amounting  to  embezzlement  or  larceny,  and  committed 
during  the  continuance  of  the  term  of  said  bond,  or  any  renewal 
thereof,  or  within  six  months  thereafter,  or  within  six  months 
from  the  death,  or  the  time  of  dismissal  of  said  Matthews  from 


DECLARATIONS  AND  PETITIONS.  137 

the  service  of  said  bank,  and  plaintiff  avers  that  on,  to-wit.  the 
15th  day  of  January,  1915,  the  said  bond  was  continued  in  force 
by  the  defendant  from  the  20th  day  of  April,  1915,  to  the  20th 
day  of  April,  1916.  And  plaintiff  avers  that  during  the  period 
covered  by  said  bond,  and  the  renewal  thereof  as  averred,  the 
said  E.  A.  Matthews  fraudulently  or  dishonestly  in  a  manner 
amounting  to  embezzlement  or  larceny  appropriated  to  his  own 
use  funds  of  money  of  the  said  Clanton  Bank  in  a  sum  in  excess 
of  the  amount  claimed,  to-wit,  $7,500.00,  and  by  reason  thereof 
the  plaintiff,  as  the  representative  of  the  said  Clanton  Bank,  af 
Clanton,  Alabama,  has  suffered  loss  in  said  sum,  and  notice 
thereof  has  been  given  to  said  defendant  by  this  plaintiff,  as 
required  by  said  bond,  and  the  defendant  has  failed  or  refused  to 
pay  the  same.  And  plaintiff  avers  that  heretofore,  to-wit,  during 
the  month  of  April,  1.916,  the  plaintiff,  as  superintendent  of 
banks  in  the  state  of  Alabama,  by  virtue  of  the  statute  in  such 
cases  provided,  and  by  proceedings  duly  had,  in  such  official 
capacity  went  into  possession  of  said  The  Clanton  Bank  for  the 
purpose  of  liquidating  its  affairs,  and  has  since  been  and  now  is 
in  possession  thereof  for  such  purpose.  And  plaintiff  further 
avers  that  by  virtue  of  his  position  as  superintendent  of  banks 
as  aforesaid,  he  brings  this  suit. 

Wm.  M.  Adams, 
Attorney  for  Plaintiff. 


No.  71. 

Complaint    for    Personal    Injury    against    Partnership    and 

Corporation. 

[Caption.] 

Plaintiff,  for  his  complaint,  alleges : 

1.  Upon  information  and  belief  that  heretofore  and  at  the 
times  hereinafter  mentioned,  the  defendants  were  and  now  are 
domestic  corporations. 

2.  Upon  information  and  belief  that  heretofore  and  at  the 
times  hereinafter  mentioned,  the  defendant,  Chiarello  Dick  Bros., 
Inc.,  was  engaged  in  the  stevedoring  business. 

3.  Upon  information  and  belief  that  heretofore  and  at  the 
times  hereinafter  mentioned,  the  defendant,  Chiarello  Bros.  Co. 


138  SUITS  AT  LAW. 

was  engaged   in  the  lighterage  business  and  owned,  controlled 
and  operated  a  certain  lighter  known  as  the  "Only  Sister." 

4.  Upon  information  and  belief  that  the  defendant,  The  Long 
Leaf  Pine  Co.,  Inc.,  at  the  times  hereinafter  mentioned,  was 
and  now  is  a  domestic  corporation. 

5.  That  at  all  times  hereinafter  mentioned,  plaintiff  was  and 
now  is  a  subject  of  the  king  of   Norway. 

6.  Upon  information  and  belief,  that  at  the  times  hereinafter 
mentioned,  the  defendant.  The  Long  Leaf  Pine  Co.,  Inc.,  had 
chartered  the  said  lighter  known  as  the  "Only  Sister"  and  at 
the  times  hereinafter  mentioned,  upon  information  and  belief 
the  said  defendant,  The  Long  Leaf  Pine  Co.,  Ins.,  were  in  charge 
and  control  of  said  lighter  and  the  loading  of  the  same  jointly 
with  the  defendants,  Chiarello  Bros.  Co.  and  Chiarello  Dick 
Bros.,  Inc. 

7.  Upon  information  and  belief,  the  defendants  herein,  at  the 
time  and  place  aforesaid,  were  engaged  in  unloading  lumber  from 
a  steamship  known  as  the  "Steamship  O'Brien"  and  in  the  carry- 
ing on  of  said  work,  the  said  defendants  were  engaged  in  un- 
loading said  lumber  and  placing  it  on  the  said  lighter  "Only 
Sister."  which  said  lighter  was  under  the  care  and  control  of 
defendants,  their  agents  and  servants. 

8.  Upon  information  and  belief  that  the  defendants  herein  wee 
in  sole  charge  and  control  of  the  work  of  unloading  said  lumber 
from  said  steamship,  shifting  it  and  placing  it  upon  the  said 
lighter. 

9.  Upon  information  and  belief  that  the  directions  relative  to 
the  moving  of  said  lumber  and  the  unloading  and  shifting  of  the 
same  from  said  steamer  to  said  lighter  was  under  the  control 
and  direction  of  the  defendant. 

10.  That  at  the  time  and  place  aforesaid,  plaintiff  herein  was 
in  the  employ  of  the  Merritt  and  Chapman  Derrick  &  Wrecking 
Company,  a  domestic  corporation,  and  as  such  employe  plaintiff 
was  lawfully  upon  said  lighter. 

11.  Upon  information  and  belief,  that  at  the  time  and  place 
aforesaid,  the  defendants  herein,  and  each  of  them,  their  agents 
and  servants,  negligently  and  carelessly  directed,  allowed  and 
permitted  said  lumber  to  be  placed  upon  said  lighter  in  a  negli- 
gent and  careless  fashion  and  negligently  and  carelessly  failed 


DECLARATIONS  AND  PETITIONS.  139 

to  secure  the  same  and  negligently  and  carelessly  allowed,  per- 
mitted and  directed  the  said  lighter  to  become  overloaded,  all 
of  which  the  defendants  well  knew  and  were  warned  of  the  fact 
that  said  lighter  was  negligently  and  carelessly  overloaded. 

12.  That  at  the  time  and  place  aforesaid,  and  by  reason  of  the 
negligence  and  carelessness  of  the  defendants,  and  through  no 
fault  or  negligence  on  the  part  of  this  plaintiff,  the  said  lighter, 
negligently  overloaded  as  aforesaid,  suddenly  and  without  warn- 
ing listed  to  the  side,  shifting  and  causing  large  quantities  of 
said  lumber  to  slide  and  fall  overboard,  catching  plaintiff,  with- 
out warning,  in  said  suddenly  shifting  lumber,  throwing  him 
down,  crushing  him,  inflicting  upon  him  a  compound  fracture  of 
the  right  leg  above  the  knee  and  a  compound  fracture  of  the 
right  leg  above  the  ankle,  permanently  injuring  his  right  knee 
and  knee-joint  and  the  muscles,  sinews  and  nerves  of  said  leg 
and  ankle-joint  of  the  right  foot,  as  he  is  informed  and  believes, 
and  upon  information  and  belief,  permanently  injuring  his  back 
and  the  muscles,  his  spine  and  right  hip  joint,  internally  and 
permanently  injuring  him,  causing  him  nervous  shock  and  dis- 
ability and  upon  information  and  belief,  preventing  him  from 
attending  to  his  work  and  earning  his  wages,  putting  him  ta 
expense  for  medical  aid  and  medicines,  forever  crippling,  dis- 
abling and  debilitating  plaintiff;  to  his  damages  $50,000. 

Wherefore,  plaintiff  demands  judgment  against  the  defendant 
in  the  sum  of  $50,000,  together  with  the  costs  and  disbursements 
of  this  action. 

A.  B., 

[Verification.]  Attorney  for  Plaintiff. 


No.  72. 
Complaint  for  Breach  of  Contract  of  Sale. 

[Caption.] 

Plaintiff,  by  A.  B.  and  C.  D.,  its  attorneys,  for  its  complaint 
against  the  defendant,  respectfully  shows  to  this  honorable  court 
and  alleges  upon  information  and  belief  as  follows: 


140  SUITS  AT  LAW. 

First.  The  plaintiff  was  at  all  the  times  hereinafter  mentioned, 
now  is  and  for  many  years  last  past  has  been  a  corporation  duly 
organized  and  existing  under  the  laws  of  the  state  of  California, 
with  its  principal  place  of  business  in  San  Francisco,  in  the  said 
state,  and  is  a  resident  and  a  citizen  of  the  state  of  California. 

Second.  The  defendant  was  at  all  the  times  hereinafter  men- 
tioned and  now  is  a  citizen  and  resident  of  the  state  of  New 
York,  residing  at  No.  940  East  173d  street,  in  the  borough  of 
the  Bronx,  and  is  a  resident  and  inhabitant  of  the  southern 
district  of  New  York,  and  is  engaged  in  the  manufacture  of 
yarns  and  threads  at  147  Spring  street,  borough  of  Manhattan, 
city  of  New  York,  doing  business  under  the  name  and  style  of 
"The  Globe  Thread  Co." 

Third.  The  matter  in  controversy  herein  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  three  thousand  dollars 
($3,000). 

Fourth.  In  or  about  the  month  of  February,  1916,  the  plain- 
tiff and  the  defendant  entered  into  an  agreement  in  writing, 
whereby  it  was  mutually  agreed  that  the  defendant  should  sell 
and  deliver  to  the  plaintiff  in  ten  monthly  shipments,  beginning 
on  or  about  March  1,  1916,  and  that  the  plaintiff  would  accept 
and  pay  for,  ten  thousand  tubes  of  thread  made  of  combed 
Egyptian  yarn,  half  silk  finish  and  half  soft  finish,  at  sundry 
prices,  amounting  in  the  aggregate  to  the  sum  of  about  $11,315, 
all  of  the  said  thread  to  be  of  the  same  color,  strength,  quality 
and  finish  as  certain  thread  constituting  a  sample  previously 
delivered  by  the  defendant  to  the  plaintiff;  and  the  defendant 
further  represented  and  declared  that  he  had  on  hand  dye  of  a 
quality  equal  to  that  used  in  the  said  sample,  and  the  plaintiff 
entered  into  the  said  agreement  relying  on  the  said  representa- 
tion ;  and  the  defendant  warranted  and  agreed  to  and  with  the 
plaintiff  that  all  of  the  said  thread  should  be  of  the  color, 
strength,  quality  and  finish  as  the  sample  on  the  faith  of  which 
the  agreement  was  entered  into,  and  further  warranted  and 
agreed  that  the  said  thread  should  be  free  from  all  defects  and 
of  good  and  merchantable  quality. 

Fifth.  The  defendant  wholly  failed  to  perform  the  said  con- 
tract with  the  plaintiff,  and  did  not  have  on  hand  dye  of  a  qual- 


DECLARATIONS  AND  PETITIONS.  141 

ity  equal  to  that  used  in  the  said  sample,  failed  to  tender  deliv- 
eries of  any  thread  at  the  time  stipulated  in  the  said  agreement, 
and  has  wholly  failed  and  refused  to  deliver  any  thread  of  the 
color,  strength,  quality  or  finish  called  for  by  said  contract,  but 
at  divers  times  the  defendant  tendered  to  the  plaintiff  various 
shipments  of  tubes  of  thread  that  were  not  in  accordance  with 
the  said  contract,  and  not  of  the  same  color,  strength,  quality  or 
finish  as  the  said  sample  thread,  but  of  a  diflferent  color  and 
finish,  and  all  of  inferior  strength  and  quality,  and  not  free  from 
defects  and  not  of  a  good  and  merchantable  quality.  The  plain- 
tiflF  rejected  all  of  the  said  shipments  and  duly  notified  the  defend- 
ant of  the  rejection  of  each  and  all  of  the  said  shipments  and 
demanded  of  the  defendant  that  he  make  deliveries  in  accord- 
ance with  his  agreement,  which  the  defendant  wholly  failed  and 
refused  to  do;  although  the  plaintiflf  was  at  all  times  ready  and 
willing  at  the  times  and  place  appointed  in  the  said  agreement, 
to  receive  the  said  thread  and  to  pay  for  the  same,  and  has 
otherwise  duly  performed  all  the  conditions  on  its  part  to  be 
performed,  the  defendant  has  wholly  failed  to  perform  the  said 
agreement,  has  failed  and  neglected  to  deliver  or  to  tender  deliv- 
ery of  the  said  thread,  or  any  part  thereof,  in  accordance  with 
the  said  agreement,  but  has  broken  and  terminated  the  said 
contract. 

Sixth.  The  plaintiff  has  incurred  expenses  in  and  about  the 
transport  of  the  said  shipments  from  the  city  of  New  York, 
where  the  same  were  delivered,  to  the  city  of  San  Francisco, 
where  the  same  were  inspected,  and  in  and  about  the  return 
thereof  to  the  city  of  New  York,  in  the  sum  of  $265.74. 

Seventh.  By  reason  of  the  premises  the  plaintiff  has  been  dam- 
aged in  the  sum  of  $10,265.74. 

Wherefore,  plaintiff  demands  judgment  against  the  defendant 
in  the  sum  of  $10,265.74,  together  with  the  costs  and  disburse- 
ments of  this  action. 

A.  B.  and  C.  D., 
Attorneys   for  Plaintiflf. 


142  SUITS  AT  LAW. 

No.  73. 

Declaration  against   Carrier  for   Violation  of   Safety  Appli- 
ance Act  (1). 

[Caption.] 

Now  comes  the  United  States  of  America,  by  Richard 
Evelyn  Byrd,  United  States  attorney  for  the  western  district 
of  Virginia,  and  brings  this  action  on  behalf  of  the  United 
States  against  the  Chesapeake  &  Ohio  Railway  Company,  a 
corporation  organized  and  doing  business  under  the  laws  of 
the  states  of  Virginia  and  West  Virginia,  and  having  an  office 
and  place  of  business  at  Clifton  Forge,  in  the  state  of  Vir- 
ginia; this  action  being  brought  upon  the  suggestion  of  the 
attorney  general  of  the  United  States  at  the  request  of  the 
interstate  commerce  commission,  and  upon  information  fur- 
nished by  said  commission. 

For  its  cause  of  action,  plaintiff  alleges  that  defendant  is, 
and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the 
state  of  Virginia. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as  the  safety  appliance  act,  approved  March  2, 
1893  (27  Statutes  at  Large,  531),  as  amended  by  an  act 
approved  April  1,  1896  (29  Statutes  at  Large,  85),  as  amended 
by  an  act  approved  March  2,  1903  (32  Statutes  at  Large,  943), 
and  as  modified  by  an  order  of  the  interstate  commerce  com- 
mission of  June  6,  1910,  which  order  was  made  pursuant  to 
the  provisions  and  requirements  of  the  aforesaid  amendment 
of  March  2,  1903,  and  is  in  the  words  and  figures  following, 
to-wit : 

It  is  ordered:  That  on  and  after  September  1,  1910,  on  all 
railroads  used  in  interstate  commerce,  whenever  as  required 
by  the  safety  appliance  act  as  amended  March  2,  1903,  any 
train  is  operated  with  power  or  train  brakes,  not  less  than 
85  per  cent,  of  the  cars  of  such  train  shall  have  their  brakes 
used  and  operated  by  the  engineer  of  the  locomotive  drawing 
such  train,  and  all  power-braked  cars  in  every  such  train  which 


DECLARATIONS  AND  PETITIONS.  143 

are  associated  together  with  the  85  per  cent,  shall  have  their 
brakes  so  used  and  operated, 

defendant  on  September  13,  1915,  operated  on  its  line  of  rail- 
road, over  a  part  of  a  through  highway  of  interstate  commerce, 
one  train,  to-wit,  its  own  No.  1/98,  consisting  of  sixty-two  cars, 
drawn  by  its  own  locomotive  engine  No.  539,  all  of  said  cars 
being  equipped  with  power  or  train  brakes,  not  less  than  85 
per  cent,  of  said  cars,  to-wit,  sixty-one  cars,  being  associated 
together  in  said  train  and  having  their  brakes  used  and  oper- 
ated by  the  engineer  of  the  locomotive  engine  drawing  said 
train. 

Plaintiff  further  alleges  that  on  said  date  defendant  operated 
said  train  as  aforesaid  over  its  line  of  railroad  from  Clifton 
Forge,  in  the  state  of  Virginia,  in  an  easterly  direction,  within 
the  jurisdiction  of  this  court,  when  one  of  the  power-braked 
cars  associated  with  said  sixty-one  cars  in  said  train,  to-wit, 
Southern  Box  No.  133173,  did  not  have  its  power  or  train 
brakes  used  and  operated  by  the  engineer  of  said  locomotive 
engine  drawing  said  train,  said  power  or  train  brakes  on  said 
car  being  cut  out  at  the  cut  out  cock  in  the  cross-over  pipe, 
and  when  all  the  power-braked  cars  in  said  train  which  were 
associated  with  the  85  per  cent,  of  the  power-braked  cars  in 
said  train  did  not  have  their  brakes  so  used  and  operated. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
the  said  act  of  congress  defendant  is  liable  to  the  plaintiff  in 
the  sum  of  one  hundred  dollars. 

Wherefore,  plaintiff  prays  judgment  against  said  defendant 
in  the  sum  of  one  hundred  dollars  and  its  costs  herein  expended. 

R.  E.  Byrd, 
United  States  Attorney. 

(1)  The  federal  safety  appliance  act  was  passed  in  1893,  and  is 
found  in  27  Stat.  L.  531,  and  amendments  thereto  are  found  in  29 
Stat.  L.  85,  32  Stat.  L.  943,  and  36  Stat.  L.  298.  In  section  6  of  the 
act  a  penalty  of  $100  for  each  violation  thereof  is  provided,  and  the 
United  States  district  attorney  is  required  to  bring  suits  to  recover 
the  penalty  in  the  United  States  district  court  having  jurisdiction  in 
the  locality  where  the  violation  occurred;  such  suit  is  to  be  brought 
upon   duly   verified   information,   and   the   interstate   commerce   com- 


144  SUITS   AT  LAW. 

mission    is    required    to    lodge    such    information    with    the    district 
attorney. 

The  suit  prescribed  is  a  civil  action.  Chicago,  etc.,  R.  Co.  v.  U.  S., 
220  U.  S.  559,  55  L.  Ed.  582.  Really  an  action  for  debt.  Atlantic 
Coast  Line  R.  Co.  v.  U.  S.,  \()8  Fed.  175.  Each  defective  equipped 
car  in  a  train  is  a  violation  of  the  act.  St.  L.  Sou.  R.  Co.  v.  U.  S., 
183  Fed.  770,  106  C.  C.  A.  136. 

An  averment  that  the  violation  occurred  "'on  or  about"  a  mentioned 
date  is  sufficient.  Atl.  C.  L.  R.  Co.  v.  U.  S.,  168  Fed.  175,  94  C.  C.  A. 
35.  And  in  the  same  case  at  page  178  it  is  held  that  an  averment 
stating  the  number  of  the  car,  nature  of  the  goods  contained  therein, 
point  of  shipment  and  of  destination  is  sufficiently  definite. 

Complaint  need  not  aver  that  defendant  acted  "knowingly  and 
negligent."  U.  S.  v.  Oregon  Short  Line  R.  Co.,  180  Fed.  483.  Nor  is 
a  complaint  under  this  act  demurrable  (1)  for  failing  to  negative  the 
matter  of  the  exception  created  by  the  proviso  to  section  6  of  the 
act,  or  (2)  because  it  shows  that  only  one  of  the  couplers  was  out  of 
repair  and  inoperative,  and  that  it  was  so  because  the  uncoupling 
chain  was  "kinked,"  or  (3)  because  it  fails  to  negative  the  exercise 
of  reasonable  care  on  the  part  of  the  railroad  company  in  maintaining 
the  coupler  in  operative  condition,  or  (4)  because,  although  showing 
an  actual  and  substantial  hauling  of  the  car  in  moving  interstate 
commerce,  it  fails  to  specify  how  far  the  hauling  was  continued,  or 
is  silent: in  respect  of  any  actual  use  of  the  defective  coupler.  U.  S. 
V.  D.  and  R.  G.  R.  Company,  163  Fed.  519,  90  C.  C.  A.  329. 

The  amendment  in  32  Stat..  L.  943,  made  in  1903,  extended  the  act 
to  cover  cars,  etc.,  used  on  any  railroad  which  is  a  highway  of  inter- 
state commerce.     Sou.  Ry.  v.  U.  S.,  222  U.  S.  20,  56  L.  Ed.  72. 


No.  73a. 

Another  Petition  for  Violation  of  Federal  Safety  Appliance 

Act. 

[Caption.] 

Now  comes  the  United  States  of  .America,  by  Stuart  R. 
Bolin,  United  States  attorney  for  the  southern  district  of  Ohio, 
and  brings  this  action  on  belialf  of  the  United  States  again.st 
the  Baltimore  &  Ohio  Southwestern  Raih'oad  Company,  a  cor- 
poration organized  and  doing  business  under  the  laws  of  the 
states  of  Ohio'  and  Indiana,  and  having  an  ofifice  and  place  of 
business  at  Cincinnati,  in  the  state  of  Ohio ;  this  action  being 
brought  upon  suggestion  of  the  attorney  general  of  the  United 


DECLARATIONS  AND  PETITIONS.  145 

States  at  the  request  of  the  interstate  commerce  commission, 
and  upon  information  furnished  by  said  commission. 

For  a  first  cause  of  action,  plaintiff  alleges  that  said  defend- 
ant is,  and  was  during  all  the  times  mentioned  herein,  a  com- 
mon carrier  engaged  in  interstate  commerce  by  railroad  in 
the  state  of  Ohio. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress approved  April  14,  1910  (contained  in  36  Statutes  at 
Large,  page  298),  said  defendant,  on  November  11,  1915, 
hauled  on  its  standard  gauge  line  of  railroad  one  freight  car, 
to-wit,  Erie  Box  No.  111772,  over  a  part  of  a  through  high- 
way of  interstate  commerce,  and  as  a  part  of  a  train  engaged 
in  the  movement  of  interstate  traffic. 

Plaintiff  further  alleges  that  on  said  date  said  defendant 
hauled  said  car  as  aforesaid  over  its  line  of  railroad  in  and 
about  Cincinnati,  in  the  state  of  Ohio,  within  the  jurisdiction 
of  this  court,  when  the  height  of  the  drawbar  on  the  "B"  end 
of  said  car,  measured  perpendicularly  from  the  level  of  the 
tops  of  the  rails  to  the  center  Ijne  of  said  drawbar,  was 
twenty-nine  and  one-half  (29 j/^)  inches,  and  when  the  height 
of  said  drawbar  should  not  have  been  less  than  thirty-one 
and  one-half  (31  T/^)  inches,  as  prescribed  by  an  order  of  the 
interstate  commerce  commission  of  October  10,  1910,  which 
order  was  made  in  pursuance  of  the  provisions  and  require- 
ments of  section  3  of  the  aforesaid  act  of  April  14,  1910. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  said  defendant  is  liable  to  plaintiff  in 
the  sum  of  one  hundred  dollars. 

For  a  second  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the  state 
of  Ohio. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress known  as  the  safety  appliance  act.  approved  March  2, 
1893  (contained  in  27  Statutes  at  Large,  page  531).,  as 
amended  by  an  act  approved  April  1,  1896  (contained  in  29 


146  SUITS  AT  LAW. 

Statutes  at  Large,  page  85),  and  as  amended  by  an  act  ap- 
proved March  2,  1903  (contained  in  32  Statutes  at  Large,  page 
943),  defendant,  on  November  30,  1915,  hauled  on  its  h"ne  of 
railroad  one  car,  to-wit,  L.  &  N.  Flat  No.  23992,  over  a  part 
of  a  through  highway  of  interstate  commerce,  and  as  a  part  of 
a  train  engaged  in  the  movement  of  interstate  traffic. 

Plaintiff  further  alleges  that  on  said  date  defendant  hauled 
said  car  as  aforesaid  over  its  line  of  railroad,  in  and  about 
Cincinnati,  in  the  state  of  Ohio,  within  the  jurisdiction  of  this 
court,  when  the  coupling  and  uncoupling  apparatus  on  the 
"A"  end  of  said  car  was  out  of  repair  and  inoperative,  the 
lock  block  of  the  coupler  on  said  end  of  said  car  being  broken, 
thus  necessitating  a  man  or  men  going  between  the  ends  of 
the  cars  to  couple  or  uncouple  them,  and  when  said  car  was 
not  equipped  with  couplers  coupling  automatically  by  impact, 
and  which  could  be  uncoupled  without  the  necessity  of  a  man 
or  men  going  between  the  ends  of  the  cars,  as  required  by 
section  2  of  the  safety  appliance  act,  as  amended  by  section  1 
of  the  act  of  March  2,  1903. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
the  said  act  of  congress,  as  amended,  defendant  is  liable  to 
plaintiff  in  the  sum  of  one  hundred  dollars. 

For  a  third  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the  state 
of  Ohio. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as  the  safety  appliance  act,  approved  March  2, 
1893  (contained  in  27  Statutes  at  Large,  page  531),  as 
amended  by  an  act  approved  April  1,  1896  (contained  in  29 
Statutes  at  Large,  page  85),  and  as  amended  by  an  act  ap- 
proved March  2,  1903  (contained  in  32  Statutes  at  Large, 
page  943),  defendant,  on  November  30.  1915,  hauled  on  its 
line  of  railroad  one  car,  to-wit,  Soulliern  Box  No.  26774, 
over-a  part  of  a  through  highway  of  interstate  commerce,  and 
as  a  part  of  a  train  engaged  in  the  movement  of  interstate 
traffic. 


DECLARATIONS  AND  PETITIONS.  147 

Plaintiff  further  alleges  that  on  said  date  defendant  hauled 
said  car  as  aforesaid  over  its  line  of  railroad,  in  and  about 
Cincinnati,  in  the  state  of  Ohio,  within  the  jurisdiction  of  this 
court,  when  the  coupling  and  uncoupling  apparatus  on  the 
"B"  end  of  said  car  was  out  of  repair  and  inoperative,  the 
uncoupling  chain  on  said  end  of  said  car  being  broken  and 
disconnected,  thus  necessitating  a  man  or  men  going  between 
the  ends  of  the  cars  to  couple  or  uncouple  them,  and  when  said 
car  was  not  equipped  with  couplers  coupling  automatically  by 
impact,  and  which  could  be  uncoupled  without  the  necessity 
of  a  man  or  men  going  between  the  ends  of  the  cars,  as 
required  by  section  2  of  the  safety  appliance  act,  as  amended 
by  section  1  of  the  act  of  March  2,  1903. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
the  said  act  of  Congress,  as  amended,  defendant  is  liable  to 
plaintiff  in  the  sum  of  one  hundred  dollars. 

Wherefore,  plaintiff  prays  judgment  against  said  defendant 
in  the  sum  of  three  hundred  dollars  and  its  costs  herein  ex- 
pended. 

Stuart  R.  Bolin, 
United  States  Attorney, 
By  Edward  K.  Bruce, 

[Duly  veriHed.']  Assistant  United  States  Attorney. 


No.  73b. 

Answer  in  Suit  for  Violation  of  Federal  Safety  Appliance  Act. 

{Caption.'] 

For  answer  to  the  first  cause  of  action  in  the  petition  con- 
tained, defendant  says  that  on  November  11,  1915,  it  received, 
on  its  line  of  railroad,  one  freight  car,  to-wit,  Erie  Box  No. 
111772,  from  a  connecting  line  of  railroad;  that  immediately 
upon  receipt  of  said  car  and  before  the  same  was  moved  or 
hauled  on  its  line  of  railroad,  the  same  was  discovered  by  it 
through  its  inspectors,  to  be  defective  in  the  respect  mentioned 
in  the  first  cause  of  action;  that  at  the  place  where  the  same 


148  SUITS  AT  LAW. 

was  discovered  to  be  defective  it  had  no  facilities  for  repair- 
ing the  same,  and  that  it  was  impossible  to  repair  the  same 
at  the  place  where  it  was  discovered  to  be  defective,  and  that 
thereupon  it  hauled  the  said  car  to  its  shops  at  the  Cincinnati 
Union  Stockyards,  which  shop  was  the  nearest  place  at  which 
the  said  car  could  be  repaired,  and  that  the  same  was  the 
same  hauling-  of  said  car  mentioned  in  the  first  cause  of  action 
in  the  petition  contained. 

A.   B.  and  C.  D., 
[Verification.]  Attorneys   for  Defendant. 


No.  74. 

Complaint  against  Railroad  for  Fire  Along  Right  of  Way. 

[Caption.] 

Comes  now  the  plaintiff,  the  United  Steles  of  America,  by 
Harry  B.  Tedrow,  United  States  attorney  for  the  district  of 
Colorado,  by  the  special  authority  and  discretion  of  the  attor- 
ney general,  and  complaining  of  defendant,  The  Denver  and 
Rio  Grande  Railroad  Company,  a  corporation,  alleges,  for  a 
first  cause  of  action : 

1.  The  defendant.  The  Denver  and  Rio  Grande  Railroad 
Company,  at  all  times  herein  mentioned  was  and  is  a  railroad 
company  and  a  railroad  corporation,  organized  and  existing 
under  the  laws  of  the  state  of  Colorado,  and  operating  a  line 
of  road  in  said  state  and  in  Huerfano  county  in  said  state. 

2.  On,  to-wit,  June  1,  1908,  and  prior  thereto,  the  plaintiff 
was  the  owner  of  and  in  possession  of  the  following  lands 
constituting  a  part  of  its  public  domain,  to-wit: 

The  west  half  of  section  twenty-nine ;  the  west  half  of  the 
southeast  quarter,  and  the  southeast  quarter  of  the  southeast 
quarter  of  section  thirty;  and  the  northeast  quarter  and  south- 
west quarter  of  section  thirty-one;  all  in  township  twenty-nine 
south,  range  sixty-nine  west  of  the  sixth  principal  meridian, 
in  Huerfano  county  in  the  state  of  Colorado,  which  lands 
then  contained  valuable  timber,  then  and  there  the  property 
of  the  plaintiff. 


DECLARATIONS  AND  PETITIONS.  149 

3.  On,  to-wit,  June  1,  1908,  the  said  defendant  was  oper- 
ating its  line  of  road  in  said  county  and  state,  near  said  lands 
of  plaintiff,  and  then  and  there,  while  so  operating  its  said 
line  of  road,  unlawfully  set  out  a  fire  near  said  lands  of  plain- 
tiff, which  fire  was  caused  by  defendant's  operation  of  its  said 
line  of  road,  and  thereby  unlawfully  set  on  fire,  burned,  de- 
stroyed and  injured  plaintiff's  said  timber  on  said  lands,  to-wit, 
243.750  linear  feet  of  mining  timbers,  of  the  reasonable  value 
of  $1,218.75;  25,000  feet,  board  measure,  of  the  reasonable 
value  of  $87.50;  and  the  plaintiff  was  compelled  to  expend 
the  sum  of  SI 06.33  for  actual  and  necessary  expenses  for 
putting  out  said  fire  to  prevent  further  damage  to  plaintiff: — 
to  plaintiff's  total  damage  in  the  sum  of  $1,412.58. 

4.  Defendant  has  not  paid  plaintiff  any  part  of  the  value 
of  said  timber  so  injured  and  destroyed,  nor  any  part  of  said 
damages,  although  requested  by  plaintiff  so  to  do. 

Wherefore,  plaintiff  prays  judgment  against  defendant  in 
the  sum  of  $1,412.58,  together  with  legal  interest  thereon  from, 
June  1,  1908,  and  costs. 

Harry  B.  Tedrow, 
United  States  Attorney. 


No.  75. 

Complaint  against  the  Collector  of  Internal  Revenue  for 
Illegal  Exaction  of  Excise  Taxes. 

[Caption.] 

Comes  now  The  Snake  River  Valley  Railroad  Company, 
the  plaintiff  above  named,  and  for  cause  of  action  against  the 
above  named  defendants  alleges: 

I.  That  the  plaintiff  on  and  prior  and  subsequent  to  June 
27,  1911,  was  a  corporation  duly  organized  and  existing  under 
the  laws  of  the  state  of  Oregon,  and  the  owner  of  a  line  of 
railroad  extending  from  Wallula,  Washington,  in  a  general 
northeasterly  direction  to  the  town  of  Grange  City  in  said  state. 

II.  That  the  defendant,  M.  A.  Miller,  was  on  and  subsequent 
to  August  16,  1913,  and  is  now,  the  duly  appointed  and  act- 


150  SUITS  AT  LAW. 

ing-  collector  of  internal  revenue  of  the  United  States  for  the 
district  of  Oregon ;  and  that  defendant,  David  M.  Dunne, 
was  prior  to  August  16,  1913,  the  duly  appointed  and  acting 
collector  of  internal  revenue  of  the  United  States  for  the  dis- 
trict of  Oregon. 

III.  That  plaintiff  herein,  on  the  29th  day  of  June,  1907, 
leased  to  The  Oregon  Railroad  and  Navigation  Company  its 
entire  railroad  and  all  property  connected  therewith,  and  same 
was  turned  over  to  The  Oregon  Railroad  and  Navigation 
Company  and  since  the  said  date  has  been  operated  by  The 
Oregon  Railroad  and  Navigation  Company  and  its  successor 
in  interest,  The  Oregon-Washington  Railroad  and  Navigation 
Company ;  and  the  plaintiff  has  not  since  said  date  carried  on 
any  business  in  connection  with  the  operation  of  said  railroad 
and  has  not  been  engaged  in  doing  or  carrying  on  any  business 
whatsoever,  except  the  business  of  owning  the  property,  main- 
taining the  investment,  collecting  the  income  and  dividing  it 
among  its  stockholders. 

IV.  That  notwithstanding  the  fact  that  the  plaintiff  has  not, 
since  June  29,  1907,  been  engaged  in  or  doing  business  in  any 
manner  wliatsoever,  except  as  above  set  forth,  the  defendant, 
David  M.  Dunne,  as  collector  of  internal  revenue  of  the 
United  States  for  the  district  of  Oregon,  wrongfully  and  ille- 
gally exacted  and  collected  from  the  plaintiff,  under  color  of 
the  provisions  of  section  38  of  an  act  of  congress  of  the  United 
States,  approved  August  5,  1909,  entitled,  "An  act  to  provide 
revenue,  equalize  duties  and  encourage  the  industries  of  the 
United  States  and  for  other  purposes,"  and  demanded  and 
required  the  plaintiff  to  involuntarily  and  under  duress  and 
compulsion  pay  to  him  on  the  27th  day  of  June,  1911,  as 
collector  of  internal  revenue  of  the  United  States  for 
the  district  of  Oregon,  the  sum  of  $870.70,  as  spe- 
cial excise  taxes  for  the  year  ending  June  30,  1911. 
That  at  said  time  and  place  plaintiff  served  written 
notices  upon  defendant,  David  j^.I.  Dunne,  that  said 
payment  was  made  under  duress  and  compulsion  and  under 


DECLARATIONS  AND  PETITIONS.  151 

protest,  solely  for  the  purpose  of  avoiding  the  imposition  of 
the  penalties  in  said  act  provided,  and  the  restraint  of  its 
goods,  chattels  and  effects,  reserving  all  its  rights  to  recover 
said  amount  so  illegally  and  erroneously  assessed  and  col- 
lected, and  that  the  assessment  of  said  tax  was  illegal  and 
void  as  against  the  plaintiff. 

V,  That  thereafter  and  on  the  2d  day  of  May,  1913,  the 
plaintiff  herein  presented  and  delivered  to  David  M.  Dunne, 
as  collector  of  internal  revenue  of  the  United  States  for  the 
district  of  Oregon,  for  transmission  to  the  commissioner  of 
internal  revenue  of  the  United  Slates  at  Washington,  D.  C, 
its  appeal  to  said  commissioner  in  the  form  and  manner  re- 
quired by  law,  and  the  regulations  of  the  secretary  of  the 
treasury  of  the  United  States,  established  in  pursuance  there- 
of. That  thereafter  and  on  or  about  the  26th  day  of  June, 
1913,  said  commissioner  of  internal  revenue  and  defendant, 
David  M.  Dunne,  as  collector,  notified  this  plaintiff  that  it 
would  be  necessary  for  the  claim_ant  to  furnish  additional  infor- 
mation in  connection  with  said  application  for  refund ;  that 
thereafter  the  plaintiff  complied  with  said  request  and  fur- 
nished said  additional  information  to  David  M.  Dunne,  as 
collector,  and  to  the  commissioner  of  internal  revenue ;  and 
thereafter  and  on  or  about  the  21st  day  of  November.  1913. 
said  commissioner  of  internal  revenue  rejected  and  disallowed 
said  appeal.  And  said  defendant,  M.  A.  Miller,  as  collector  of 
internal  revenue,  and  defendant,  David  M.  Dunne,  as  former 
collector  of  internal  revenue,  to  whom  said  money  was  paid, 
by  reason  of  the  disallowance  and  rejection  of  said  appeal 
and  application  for  refund  by  the  commissioner  of  internal 
revenue,  refuse  and  still  refuse  to  refund  to  this  plaintiff  the 
whole  or  any  part  of  said  taxes  so  wrongfully  and  illegally 
exacted  and  collected  from  this  plaintiff. 

Wherefore,  plaintiff  demands  judgment  against  the  defend- 
ants for  the  sum  of  eight  hundred  seventy  and  70/100  dollars, 
together  with  interest  thereon  from  June  27 ,  1911,  and  for  its 
<:osts  and  disbursements  herein. 

A.  B.  and  C.  D., 

[VeriUcation.]  Attorneys  for  Plaintiff. 


152  SUITS    AT   LAW. 

No.  76. 

Allegation  of  Guardianship  ad  Litem. 

That  the  plaintiffs,  Orene  Wright  and  Ora  Wright,  are 
minors,  each  of  whom  is  under  the  age  of  fourteen  years; 
that  the  said  Orene  Wright  is  of  the  age  of  thirteen  years, 
and  that  the  said  Ora  Wright  is  of  the  age  of  eleven  years; 
that  the  plaintiff,  Gertrude  Wright,  is  the  mother  of  said 
minors,  and  that  at  the  beginning  of  this  action  said  Gertrude 
Wright  has  made  application  to  be  appointed  the  guardian 
ad  litem  of  said  minors  for  the  purpose  of  prosecuting  and 
conducting  this  action,  and  that  said  application  has  been 
granted,  and  by  an  order  of  this  court  duly  given,  made  and 
entered  herein,  the  said  Gertrude  Wright  has  been  appointed 
and  now  is  the  duly  qualified  and  acting  guardian  ad  litem 
of  the  said  Orene  Wright  and  the  said  Ora  Wright,  minors, 
plaintiffs  in  this  action. 


No.  77. 

Complaint   for   Refusal   to    Honor    Check   against   an   Open 

Account. 

[Caption.] 

Plaintiff,  by  William  Klein,  its  attorney,  for  its  amended 
complaint  herein,  respectfully  shows  to  the  court  and  alleges: 

1.  Plaintiff  is,  and  at  all  times  hereinafter  mentioned  was, 
a  foreign  corporation,  organized  and  existing  under  the  laws 
of  the  state  of  New  Jersey. 

2.  Defendant  is  and  at  all  times  hereinafter  mentioned  was, 
a  corporation  organized  and  existing  under  the  laws  of  the 
United  States,  and  located  in  this  state,  and  engaged  in  the 
business  of  banking  in  the  city  and  county  of  New  York. 

3.  On  or  about  the  day  of  November,  1911,  a  deposit 

account  was  opened  by  plaintiff  by  its  agent  duly  authorized 
in  defendant  bank.  At  the  opening  of  said  account,  it  was 
agreed  that  said  account  should  be  drawn  against  by  plaintiff 
over  the  signature  of  I.ee  Shubert  or  Jacob  J.  Shubert.     Both 


DECLARATIONS   AND   PETITIONS.  153 

Lee  Shubert  and  Jacob  J-  Shubert  were  and  are  officers  of 
plaintiff.  Checks  drawn  by  plaintiff  and  signed  as  aforesaid 
were,  it  was  agreed,  to  be  denominated  "Blue  Bird  Special" 
on  the  face  thereof. 

4.  At   divers  times  between   the  day   of  November, 

1911,  and  the  19th  day  of  July,  1915,  plaintiff  delivered  vari- 
ous sums  of  money  to  defendant  which  defendant  received  on 
deposit  in  plaintiff's  account  mentioned  in  paragraph  3  herein- 
above, and  which  defendant  agreed  to  repay  to  this  plaintiff 
or  to  its  order  on  demand. 

5.  On  the  said  19th  day  of  July,  1915,  there  remained  in 
tlie  hands  of  llie  defendant  of  the  said  moneys  so  deposited 
as  aforesaid,  a  balance  undrawn  by  the  plaintiff  of  $11,938.30. 

6.  On  or  about  that  day  and  before  the  beginning  of  this 
action,  plaintiff  duly  demanded  of  defendant  the  repayrhent 
to  this  plaintiff  of  said  balance.  On  or  about  said  day,  and 
in  connection  with  said  demand,  and  as  a  part  thereof,  and 
before  the  beginning  of  this  action,  plaintiff  drew  against  its 
account  witli  defendant  by  a  check  for  $1 1.938.30,  signed  "Lee 
Shubert"  and  denominated  "Blue  Bird  Special"  on  the  face 
thereof.  Defendant,  however,  refused  and  still  refuses  to  pay 
the  sum  of  $11,938.30  or  any  part  thereof. 

Wherefore,  plaintiff  demands  judgment  against  defendant  in 
the  sum  of  $11,938.30  with  interest  thereon  from  the  19th  day 
of  July,  1915,  and  the  costs  and  disbursements  of  this  action. 

A.  B., 
Attorney  for  Plaintiff. 


No.  78. 

Declaration  by  State  on  Indemnifying  Bond  given  in  Suit  to 

Enjoin. 

[Caption.] 

State  of  Maryland,  to  the  use  of  A.  B.  Baxter,  a  citizen  and 
resident  of  the  state  of  Pennsylvania,  by  James  A.  McHenry 
and  Gans  &  Haman.  its  attorneys,  sues  George  E,  Deneen, 


154  SUITS    AT    LAW. 

William  M.  Mertens  and  Harrison  Swartswelder,  defendants, 
each  and  all  of  whom  are  citizens  of  the  state  of  Maryland, 
and  none  of  whom  are  citizens  of  the  state  of  Pennsylvania : 

For  that,  on  or  about  the  18th  day  of  October,  1902,  there 
was  on  deposit  in  the  Third  National  Bank  of  Cumberland, 
to  the  credit  of  A.  B.  Baxter,  and  subject  to  check  signed  by 
him,  the  sum  of  eighteen  thousand,  two  hundred  and  fifty- 
three  dollars  and  six  cents  (SI 8,253.06),  and  on  said  day  the 
said  George  E.  Deneen  filed  his  bill  of  complaint  in  the  circuit 
court  of  Allegany  county,  Maryland,  in  equity,  against  the 
said  A.  B.  Baxter,  the  Third  National  Bank,  and  certain  other 
defendants,  by  which  said  bill  the  said  Deneen  prayed  for  an 
injunction  to  prohibit  and  restrain  the  said  Baxter  from  with- 
drawing any  of  the  said  money  from  the  said  Third  National 
Bank,  and  prohibiting  the  said  bank  from  paying  out  any  of 
said  money  to  Baxter,  or  to  any  one  else  on  his  check  or  order; 
whereupon  the  said  circuit  court  of  Allegany  county,  ordered 
that  a  preliminary  writ  of  injunction  be  issued  as  prayed  for  in 
said  bill  upon  the  filing  of  a  bond  by  the  said  Deneen  to  the 
state  of  Maryland  in  the  penalty  of  twenty  thousand  dollars, 
with  securities  to  be  approved  by  the  clerk  of  the  court ;  with 
leave,  however,  to  the  defendant  to  move  for  a  dissolution  of 
the  injunction.  And  thereafter,  to-vvit,  on  October  23,  1902, 
the  said  Deneen,  as  principal,  and  the  said  \V.  M.  Mertens 
and  H.  Svvartzwelder,  as  sureties,  executed  and  filed  in  said 
case  in  said  court  an  injunction  bond  as  follows: 

"Know  all  men  by  these  presents,  that  we,  George  E.  Deneen, 
William  M.  Mertens  and  H.  Swartzwelder,  of  Allegany  coun- 
ty, Maryland,  are  held  and  firmly  bound  unto  the  state  of 
Maryland  in  the  full  and  just  sum  of  twenty  thousand  dollars 
current  money  to  be  paid  to  the  state  of  Maryland,  or  its 
certain  attorney,  to  which  payment,  well  and  truly  to  be  made 
and  done,  we  bind  ourselves,  and  each  of  us,  our  and  each  of 
our  heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents:  sealed  with  our  seals  and  dated  this 
18th  day  of  October  in  the  year  nineteen  hundred  and  two. 


DECLARATIONS   AND   PETITIONS.  155 

"Whereas,  by  an  order  of  the  circuit  court  for  Allegany 
county,  passed  in  a  cause  wherein  the  said  George  E.  Deneen 
is  plaintiff,  and  A.  B.  Baxter,  the  Third  National  Bank  and 
others,  are  defendants,  an  injunction  is  about  to  issue  to  re- 
strain the  said  defendants  as  prayed  in  the  bill  in  the  said  cause 
exhibited,  upon  the  plaintiff  filing  a  bond  with  security  in  the 
above  penalty — 

"Now  the  condition  of  the  above  obligation  is  such,  that  if 
the  said  plaintiff  shall  and  do  prosecute  the  said  writ  of  injunc- 
tion with  effect,  and  indemnify  and  save  harmless  the  said 
defendants,  if  the  same  be  not  prosecuted  with  effect,  and  in 
such  case  pay  all  costs  and  damages  that  may  be  occasioned 
by  the  issuing  thereof,  unless  the  said  court  shall  decree  to 
the  contrary,  and  shall  in  all  things  obey,  abide  by,  perform 
and  fulfill  such  decree  and  order  as  shall  be  made  in  the  prem- 
ises, then  the  above  obligation  to  be  void;  otherwise  to  remain 
in  full  force  and  virtue. 

"George  E,  Deneen,  [Seal] 
"PI.  Swartzvvelder,  [Seal] 
"W.  M.  Mertens,  [Seal]" 

And  the  said  bond  was  thereupon  approved  by  John  W. 
Young,  clerk  of  said  court,  and  thereafter,  on  said  day.  said 
preliminary  writ  of  injunction  was  issued  as  prayed  for  in 
said  bill;  and  thereafter,  to-wit,  on  November  24.  1902.  the 
said  A.  B.  Baxter  filed  a  motion  for  the  dissolution  of  the 
said  injunction. 

And  the  plaintiff  further  says  that  the  said  George  E.  Deneen 
did  not  prosecute  the  said  writ  of  injunction  with  effect  and  did 
not  indemnify  and  save  harmless  the  said  A.  B.  Baxter,  and 
did  not  pay  all  the  costs  or  damages  that  were  occasioned  by 
the  issuance  of  said  writ  of  injunction,  and  did  not  in  all  things 
obey,  abide  by,  perform  and  fulfill  the  decree  and  order  finally 
made  and  rendered  in  said  case. 

But,  on  the  contrary,  the  plaintiff  shows  that  such  further 
proceedings  were  had  in  said  case,  that  on  or  about  the  23d 
day  of  March,   1904,  the  court  of  appeals  of  Maryland,  to 


156  SUITS    AT    LAW. 

which  an  appeal  had  been  taken  in  said  case,  ordered  that  the 
bill  of  complaint  in  said  case  be  dismissed,  with  costs  to  the 
said  Baxter,  and  said  injunction  was  thereupon  dissolved. 

Wherefore,  the  plaintiff  shows  that  the  defendants  herein, 
to-wit,  George  E.  Deneen,  and  the  sureties  on  said  bond,  Har- 
rison Swartzwelder  and  William  M.  Mertens,  did  not  fulfill 
the  condition  of  said  injunction  bond,  and,  therefore,  are  liable 
to  the  equitable  plaintiff  for  and  on  account  of  the  same. 

And  the  plaintiff  further  shows  that  by  reason  of  the  issu- 
ance of  said  injunction  and  the  continuance  of  the  same  until 
dissolved  as  aforesaid  by  the  court  of  appeals  of  Maryland, 
the  said  Baxter  was  deprived  of  the  use  of  said  money  on 
deposit  in  the  Third  National  Bank,  from  October  23,  1902. 
until  March  23,  1904,  and  further,  he  was  compelled  to  pay 
the  amount  of  eight  hundred  dollars  ($800)  as  costs  in  said 
injunction  case,  none  of  which  said  costs  have  been  refunded 
to  him  by  the  said  Deneen,  and  he  has  suffered  other  great 
damages. 

And  the  said  equitable  plaintiff  has  made  demand  upon  the 
defendants  for  satisfaction  and  payment  thereof,  which  has 
been  refused. 

And  the  plaintiff  further  shows  that  none  of  the  defendants 
in  said  suit  other  than  said  Baxter  were  in  any  wise  interested 
or  entitled  to  any  benefit  in  said  money  on  deposit  in  the  Third 
National  Bank,  nor  were  they  in  any  way  damaged  by  the 
issuance  and  continuance  of  said  injunction  as  aforesaid. 

And  the  plaintiff  further  shows  that  the  sum  of  more  than 
two  thousand  dollars  fS2,000),  exclusive  of  interest  and  costs, 
is  in  controversy  in  this  suit. 

And  the  plaintiff,  therefore,  claims  twenty  thousand  dollars 
($20,000)  damages. 

A.  B.  and  C.  D., 
Attorneys  for  Plaintiff. 

[Caption.] 


DECLARATIONS   AND   PETITIONS.  157 

No.  79. 

Writ    and    Declaration — Violation    of    Federal    Employer's 
Liability  Act  (1). 

[Caption.] 
United  States  of  America, 

New  Hampshire  District,  ss. 
Thei  President  of  the  United  States  of  America,  to  the  Marshal 
of  our  District  of  New  Hampshire,  or  his  Deputy, 
[seal]     Greeting: 

We  command  you  to  attach  the  goods  or  estate  of  the  Boston 
&  Maine  Railroad,  a  corporation  duly  organized  under  the 
laws  of  the  state  of  New  Hampshire,  a  citizen  and  inhabitant 
of  said  state  and  of  Concord  in  said  district,  to  the  value  of 
forty  thousand  dollars,  and  summon  it  (if  it  may  be  found  in 
your  district)  to  appear  before  our  judges  of  our  circuit  court, 
next  to  be  holden  at  Concord  within  and  for  our  said  district 
of  New  Hampshire,  on  the  second  Tuesday  of  December  next, 
then  and  there  in  our  said  court  to  answer  unto  Mary  J.  Benson 
of  Lebanon  in  the  county  of  Grafton  and  state  of  New  Hamp- 
shire and  a  citizen  and  inhabitant  of  said  last  mentioned  state 
duly  appointed  and  now  acting  as  administratrix  of  the  estate 
of  Henry  D.  Sumner  late  of  Bellows  Falls  in  the  county  of. 
Windham  and  district  of  Vermont  under  authority  of  the 
judge  of  probate  of  the  county  of  Grafton  in  the  state  of  New 
Hampshire : 

In  a  plea  of  the  case,  for  that  the  defendant  was  on  the 
2d  day  of  October,  1909,  and  ever  since  has  been,  a  corpora- 
tion operating  a  railroad  between  Windsor  in  the  district  of 
Vermont  and  Claremont  Junction  in  the  district  of  New  Hamp- 
shire, and  a  common  carrier  by  railroad  engaged  in  interstate 
commerce  between  said  state  of  Vermont  and  the  state  of 
New  Hampshire;  that  said  plaintiff's  intestate,  said  Henry  D. 
Sumner  deceased,  was  then  and  there  in  the  employ  of  said 
defendant  corporation  as  a  car  inspector  at  said  Windsor,  and 
was  employed  by  said  defendant  in  said  capacity  in  such  inter- 
state commerce;  that  said  defendant  was  then  and  there  oper- 


158  SUITS    AT    LAW. 

ating  between  said  Windsor  and  said  Claremont  Junction  a 
certain  freight  train,  and  sairl  train  was  tlien  and  there  engaged 
in  carrying  interstate  commerce:  that  said  defendant  was  then 
and  there  employing  as  a  car  inspector  at  said  Windsor  a  cer- 
tain man  named  Charles  Coleman,  whose  duty  it  was  to  in- 
struct said  deceased  how  properly  to  do  his  work,  and  to 
warn  said  deceased  of  the  dangers  incident  to  such  work;  that 
said  defendant  was  then  and  there  employing  a  certain  train 
crew  on  said  train  at  said  Windsor,  whose  duty  it  was  to  handle 
said  train  in  a  reasonable  and  careful  manner,  and  with  due 
regard  to  the  safety  of  said  car  inspectors ;  that  said  deceased 
was  then  and  there  employed  as  a  car  inspector  as  aforesaid 
on  the  defendant's  said  railroad  at  said  Windsor,  and  while  so 
employed  and  in  the  exercise  of  due  care,  he  was  bruised  and 
injured  by  reason  of  a  fall  from  the  top  of  one  of  the  cars  of 
said  train,  said  fall  being  caused  (1)  by  the  failure  of  said  Cole- 
man to  properly  instruct  said  deceased  how  properly  to  do  his 
work ;  (2)  by  the  failure  of  said  Coleman  to  warn  said  deceased 
of  the  dangers  of  such  work;  and  (3)  by  the  failure  of  said 
train  crew  to  handle  said  train  in  a  reasonable  and  careful 
manner,  and  with  due  regard  to  the  safety  of  said  car  inspec- 
tors ;  by  reason  of  which  negligence  on  the  part  of  said  defend- 
ant, its  officers,  agents  and  employes,  said  deceased  received 
injuries  as  aforesaid  from  which  he  died  on  the  20th  day  of 
May.  1910;  wdiereby  under  an  act  of  congress  entitled,  "An 
act  relating  to  the  liability  of  common  carriers  by  railroad  to 
their  employes  in  certain  cases,"  approved  April  22,  1908,  an 
action  has  accrued  to  the  plaintiff,  who  is  the  administratrix 
of  the  estate  of  said  deceased,  to  recover  in  her  said  capacity 
as  administratrix  for  the  benefit  of  said  estate,  for  the  benefit 
of  the  widow  of  said  deceased,  Annella  J.  Sumner,  and  for  the 
benefit  of  Edwin  H.  Sumner,  lone  C.  Sumner,  and  Mabel  A. 
Mack,  all  of  Bellows  Falls,  and  Evelyn  J.  Mack  of  Brattleboro, 
in  the  county  of  Windham  and  said  district  of  Vermont, 
children  of  said  deceased,  the  damages  caused  to  them,  to  said 
deceased,  and  to  his  estate  by  the  aforesaid  negligence ;  to  the 


DECLARATIONS   AND   PETITIONS.  159 

damage  of  the  plaintiff,  as  she  says,  the  sum  of  forty  thousand 
dollars  ($40,000.00). 

To  the  damage  of  the  said  Mary  J.  Benson  (as  she  says)  the 
sum  of  forty  thousand  dollars,  which  shall  then  and  there  be 
made  to  appear,  with  other  due  damages.  And  have  you  there 
this  writ,  with  your  doings  therein. 

Witness  Honorable  Edward  D.  White,  Chief  Justice  of  the 
United  States,  at  Concord,  the  29th  day  of  September,  Anno 
Domini  1911. 

Burns  P.  Hodgman,  Clerk. 


(1)  This  act  went  into  effect  April  22,  1908,  35  Stat.  L.  65.  and  was 
amended  by  36  Stat.  L.  291,  which  added  section  9  providing  for  the 
survival  of  the  action  to  the  representative  of  the  decedent. 

The  statute  need  not  be  specifically  referred  to  in  the  complaint. 
Grand  Trunk   Western    R.   v.    Lindsay,  233   U.   S.  42,   58   L.    Ed.  838. 

The  act  of  1908  created  a  new  and  independent  cause  of  action, 
Mich.  Cent.  R.  R.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417,  and  the 
amendment  of  1910  saves  this  cause  of  action  to  the  representative, 
hence  since  the  amendment  the  recovery  includes  also  the  loss  and 
suffering  to  the  decedent,  St.  L.  and  I.  M.  Ry.  v.  Craft,  237  U.  S. 
648.  59  L.  Ed.  1160,  but  not  where  the  period  between  the  injury 
and  the  death  is  very  brief,  or  the  injured  person  lived  for  a  time  in 
a  condition  of  unconsciousness.  G.  N.  Ry.  Co.  v.  Cap.  Trust  Co., 
242  U.  S.  144.  61  L.  Ed.  208. 

The  representative  is  limited  to  one  recovery  for  both  causes  of 
action  recognized  by  the  statute,  for  the  avoidance  of  needless  liti- 
gation in  separate  actions.  St.  L.  &  I.  M.  Ry.  v.  Craft,  supra,  and 
K.  C.  Sou.  Ry.  V.  Leslie,  238  U.   S.  599,  59  L.   Ed.   1478. 

An  amendment  to  the  petition  which  sets  out  a  rtew  or  different 
cause  of  action  is  equivalent  to  a  new  suit  and  hence  subject  to  the 
test  of  the  two  year  statute  of  limitations.  Seaboard  Air  Line  Ry.  v. 
Renn,  241  U.  S.  290,  60  L.  Ed.  1006.  A  new  cause  of  action  is  not 
stated  by  an  amendment  which  adds  to  the  original  averment  that 
the  injuries  caused  the  deceased  to  suffer  "intense  pain"  an  allegation 
of  "conscious  pain  and  suffering."  Washington  Ry.  &  El.  Co.  v.  Scala. 
244  U.  S.  630,  61  L.  Ed.  1360.  Also  on  the  effect  of  the  statute  of  limi- 
tations on  amendments,  see  notes  to  cases  in  3  L.  R.  A.  (N.S.)  259, 
33  L.  R.  A.  (N.S.)  196,  47  L.  R.  A.  (N.S.)  932. 

The  widow  can  not  recover  for  loss  of  society  and  companionship 
of  the  deceased,  being  limited  to  pecuniary  damage  only.  Mich.  Cent. 
R.  R.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417;  Gulf,  etc.,  Ry.  Co.  v. 
McGinnis,  228  U.  S.  173,  57  L.  Ed.  785. 


160  SUITS    AT    LAW. 

The  act  is  involved,  although  not  directly  mentioned,  where  com- 
plaint alleges  and  the  proof  establishes  that  the  employe  was  en- 
gaged in,  and  the  injury  occurred  in  the  course  of,  interstate  com- 
merce. G.  T.  W.  Ry.  Co.  v.  Lindsay.  233  U.  S.  42,  58  L.  Ed.  838; 
I.  C.  R.  R.  Co.  V.  Behrens.  233  U.  S.  473,  58  L.  Ed.  1051. 

Where  the  petition  did  not  distinctly  aver  that  the  cause  of  action 
arose  under  the  act,  and  did  not  aver  that  it  arose  under  the  state 
law,  but  further,  averred  that  defendant  was  engaged  in  operating 
its  railroad  in  that  and  other  states,  an  amendment  that  plaintiff's 
employment  and  defendant's  engagement  were  both  in  interstate  com- 
merce at  the  time  of  the  injury,  is  admissible.  Seaboard  Air  Line  v. 
Renn,  241  U.  S.  290,  60  L.  Ed.  1006. 

Where  the  petition  states  facts  suflRcient  to  constitute  a  cause  of 
action  either  under  the  act  or  under  the  state  statute,  or  at  the 
common  law,  a  case  arising  under  the  act  is  stated.  Flas  v.  I.  C.  R. 
Co.,  229  Fed.  319. 

Failure  to  allege  a  duty  from  the  conductor  to  the  injured  brake- 
man  in  a  suit  under  the  act  is  not  fatal,  since  the  act  imposes  a  duty 
on  the  carrier  in  case  of  injury  of  one  employe  through  the  negligence 
of  another.     I.   C.   R.   R.  v.   Norris,  245   Fed.  926. 

Generally,  on  the  constitutionality,  application  and  effect  of  the 
act  and  the  pleading  thereunder,  see  Lamphere  v.  O.  R.  &  N.  Co., 
47  L.  R.  A.   (N.S.)  1,  and  note  at  page  38. 


No.  80. 

Complaint  where  Attorneys  Sue  for  Fees. 

[Caption.] 

The  plaintiffs  complaining  of  the  defendant,  allege: 
1.  That  on  or  about  the  15th  day  of  April.  A.  D.  1909,  the 
plaintiffs  were  employed  by  the  defendant  to  represent  him  in 
two  suits  then  just  instituted  by  J.  G.  Merrimon,  Esq.,  ici  the 
superior  court  of  McDowell  county.  North  Carolina,  which 
suits  were  in  behalf  of  D.  J.  McDonald,  and  against  McArthur 
Brothers  Company,  the  Carolina,  Clinchfield  &  Ohio  Railway, 
and  others,  one  suit,  however,  being  only  against  MacArthur 
Brothers  Company,  and  was  for  the  recovery  of  tnore  than 
twenty  thousand  dollars  ($20,000.00)  for  railroad  construc- 
tion work  in  the  state  of  Virginia,  and  the  other  was  against 
said  MacArthur  Brothers  Company,  said  railway  company, 
and  others,  and  was  for  the  recovery  of  an  alleged  claim  in  the 


DECLARATIONS  AND  PETITIONS.  161 

total  amount  of  thirty-four  thousand  seven  hundred  thirty-nine 
and  85/100  dollars  ($34,739.85),  claimed  as  due  for  railroad 
construction  work  in  McDowell  county,  North  Carolina. 

2.  That  the  plaintiffs  made  unusual  preparation  in  said 
causes,  assisted  in  the  preparation  of  all  pleadings,  motions  and 
other  papers  filed  for  the  plaintiff  in  said  causes,  made  many 
trips  to  distant  points  in  the  United  States  and  participated  in 
the  trial  of  the  causes  for  which  a  special  term  of  court  was 
called  and  held,  occupying  nearly  two  entire  weeks,  in  which 
suits  the  plaintiff  recovered  $6,916.15,  in  the  suit  involving 
the  work  in  Virginia,  which  amount  was  accepted  by  the  plain- 
tiff in  compromise  after  allowing  proper  credit  to  said  com- 
pany, and  in  the  second  suit  the  plaintiff  recovered  $27,528.47, 
with  interest  from  January  10,  1909,  with  all  costs,  the  total 
amount  when  collected  being,  as  plaintiffs  are  informed,  about 
$31,000.00. 

3.  That  for  many  months  prior  to  the  trial  of  said  causes 
the  plaintiffs  were  the  only  counsel  representing  the  said  Mc- 
Donald residing  in  the  state  of  North  Carolina,  and  during  the 
trial  the  plaintiffs  were  the  only  attorneys  appearing  for  the 
plaintiff  residing  in  this  state,  and  the  plaintiffs  actively  par- 
ticipated in  the  trial  and  rendered  all  the  services  of  which 
they  were  capable. 

4.  That  both  parties  to  the  said  suits  appealed  to  the  supreme 
court  from  the  judgment  of  the  superior  court  and  in  the  prepa- 
ration of  the  records,  arranging  the  transcripts,  preparing 
briefs  and  arguments  both  of  the  plaintiffs  in  this  cause  devoted 
great  time  and  labor,  and  the  said  J.  W.  Pless  devoted  almost 
his  exclusive  time  and  labor  to  said  work  and  participated  in 
the  argument  in  the  supreme  court,  which  said  court  confirmed 
the  judgment  in  the  lower  court,  and  the  said  D.  J.  McDonald 
has  collected,  as  plaintiffs  are  informed,  the  whole  amount  of 
his  said  judgments. 

5.  That  by  reason  of  said  employment,  and  on  account  of 
the  labor  of  the  plaintiffs  for  the  said  defendant  in  this  cause, 
in  the  preparation  and  trial  of  the  said  causes,  the  defendant. 


162  *  SUITS    AT    LAW. 

D.  J.  McDonald,  is  indebted  to  the  plaintiffs  over  and  above 
all  payments,  off-sets  and  counterclaims,  and  the  plaintiffs  are 
entitled  to  recover  of  him  the  sum  of  four  thousand  dollars 
($4,000.00),  with  interest  from  the  date  of  the  institution  of 
this  suit. 

Wherefore,  the  plaintiffs  pray  judgment  against  the  defend- 
ant, D.  J.  McDonald,  in  the  sum  of  four  thousand  dollars 
($4,000.00),  with  interest  from  the  date  of  institution  of  this 
cause,  the  costs  of  this  action  to  be  taxed  by  the  clerk,  and 
for  such  other  and  further  relief  as  to  the  court  may  seem 
just,  right  and  proper. 

A.  B.  and  C.  D., 
Attorneys  for  Plaintiffs. 

[Verification.] 


No.  81. 

Information  against  a  Carrier  for  Violation  of  Hours  of  Service 

Act  (1). 

[Caption.] 

Now  comes  the  United  States  of  America,  by  James  H. 
Wilkerson,  United  States  attorney  for  the  northern  district 
of  Illinois,  and  brings  this  action  on  behalf  of  the  United 
States  against  the  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  a  corporation,  organized  and  doing  business  under 
the  laws  of  the  states  of  Illinois  and  Indiana,  and  having  an 
office  and  place  of  business  at  Blue  Island  in  the  state  of  Illi- 
nois; this  action  being  brought  upon  suggestion  of  the  attor- 
ney general  of  the  United  States  at  the  request  of  the  interstate 
commerce  commission,  and  upon  information  furnished  by 
said  commission. 

For  a  first  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the 
state  of  Illinois. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as  "An  act  to  promote  the  safety  of  employes 


DECLARATIONS   AND   PETITIONS.  163 

and  travelers  upon  railroads  by  limiting  the  hours  of  service 
of  employes  thereon,"  approved  March  4,  1907  (contained  in 
34  Statutes  at  Large,  page  1415),  defendant,  during  the 
twenty-four  hour  period  beginning  at  the  hour  of  6:00  o'clock 
a.  m.  on  November  22,  1913,  at  its  office  and  station  at  Blue 
Island,  in  the  state  of  Illinois,  and  within  the  jurisdiction  of 
this  court,  required  and  permitted  its  certain  employe,  to-wit, 
Edward  T.  Kelly,  to  be  and  remain  on  duty  for  a  longer  period 
than  nine  hours  in  said  twenty-four  hour  period,  to-wit,  from 
said  hour  of  6:00  o'clock  a.  m.  on  said  date,  to  the  hour  of 
6 :00  o'clock  p.  m.  on  said  date. 

Plaintiff  further  alleges  that  during  all  the  times  mentioned 
herein  said  office  and  station  was  one  continuously  operated 
night  and  day,  and  that  said  employe,  while  required  and 
permitted  to  be  and  remain  on  duty  as  aforesaid,  by  the  use  of 
the  telegraph  or  telephone,  dispatched,  reported,  transmitted, 
received  and  delivered  orders  pertaining  to  and  affecting  the 
movement  of  trains  engaged  in  interstate  commerce. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  defendant  is  liable  to  plaintiff  in  the  sum 
of  five  hundred  dollars. 

For  a  second  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the 
state  of  Illinois. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as.  "An  act  to  promote  the  safety  of  employes 
and  travelers  upon  railroads  by  limiting  the  hours  of  service  of 
employes  thereon,"  approved  March  4,  1907  (contained  in  34 
Statutes  at  Large,  page  1415),  defendant,  during  the  twenty- 
four  hour  period  beginning  at  the  hour  of  6:00  o'clock  a.  m. 
on  November  23,  1913,  at  its  office  and  station  at  Blue  Island, 
in  the  state  of  Illinois,  and  within  the  jurisdiction  of  this 
court,  required  and  permitted  its  certain  employe,  to-wit, 
Edward  T.  Kelly,  to  be  and  remain  on  duty  for  a  longer  period 
than  nine  hours  in  said  twenty-four  hour  period,  to-wit,  from 


164  SUITS    AT    LAW. 

said  hour  of  6  :00  o'clock  a.  m.  on  said  date,  to  the  hour  of 
6 :00  o'clock  p.  m.  on  said  date. 

Plaintiff  further  alleges  that  during  all  the  times  mentioned 
herein  said  office  and  station  was  one  continuously  operated 
night  and  day,  and  that  said  employe,  while  required  and 
permitted  to  be  and  remain  on  duty  as  aforesaid,  by  the  use 
of  the  telegraph  or  telephone,  dispatched,  reported,  trans- 
mitted, received,  and  delivered  orders  pertaining  to  and  affect- 
ing the  movement  of  trains  engaged  in  interstate  commerce. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  defendant  is  liable  to  plp.intiff  in  the  sum 
of  five  hundred  dollars. 

For  a  third  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the  state 
of  Illinois. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as,  "An  act  to  promote  the  safety  of  employes 
and  travelers  upon  railroads  by  limiting  the  hours  of  service 
of  employes  thereon,"  approved  March  4,  1907  (contained  in 
34  Statutes  at  Large,  page  1415),  defendant,  during  the  twen- 
ty-four hour  period  beginning  at  the  hour  of  6:00  o'clock  a.  m. 
On  November  24,  1913,  at  its  office  and  station  at  Blue  Island, 
in  the  state  of  Illinois,  and  within  the  jurisdiction  of  this 
court,  required  and  permitted  its  certain  employe,  to-wit, 
Edward  T.  Kelly,  to  be  and  remain  on  duty  for  a  longer  period 
than  nine  hours  in  said  twenty-four  hour  period,  to-wit,  from 
said  hour  of  6:00  o'clock  a.  m.  on  said  date,  to  the  hour  of 
6:00  o'clock  p.  in.  on  said  date. 

Plaintiff  further  alleges  that  during  all  the  times  mentioned 
herein  said  office  and  station  was  one  continuously  operated 
night  and  day,  and  that  said  employe,  while  required  and 
permitted  to  be  and  remain  on  duty  as  aforesaid,  by  the  use  of 
the  telegraph  or  telephone,  dispatched,  reported,  transmitted, 
received  and  delivered  orders  pertaining  to  and  affecting  the 
movement  of  trains  engaged  in  interstate  commerce. 


DECLARATIONS   AND   PETITIONS.  165 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  defendant  is  liable  to  plaintiff  in  the  sum 
of  five  hundred  dollars. 

For  a  fourth  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the  state 
of  Illinois. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as,  "An  act  to  promote  the  safety  of  employes 
and  travelers  upon  railroads  by  limiting  the  hours  of  service 
of  employes  thereon,"  approved  March  4,  1907  (cont'ained  in  34 
Statutes  at  Large,  page  1415),  defendant,  during  the  twenty- 
four  hour  period  beginning  at  the  hour  of  6 :00  o'clock  p.  m. 
on  November  22,  1913,  at  its  office  and  station  at  Blue  Island, 
in  the  state  of  Illinois,  and  within  the  jurisdiction  of  this  court, 
required  and  permitted  its  certain  employe,  to-wit,  John  Mee- 
han,  to  be  and  remain  on  duty  for  a  longer  period  than  nine 
hours  in  said  twenty-four  hour  period,  to-wit,  from  said  hour 
of  6 :00  o'clock  p.  m.  on  said  date,  to  the  hour  of  6 :00  o'clock 
a.  m.  on  November  23,  1913. 

Plaintiff  further  alleges  that  during  all  the  time  mentioned 
herein  said  office  and  station  was  one  continuously  operated 
night  and  day,  and  that  said  employe,  while  required  and  per- 
mitted to  be  and  remain  on  duty  as  aforesaid,  by  the  use  of 
the  telegraph  or  telephone,  dispatched,  reported,  transmitted, 
received  and  delivered  orders  pertaining  to  and  affecting  the 
movement  of  trains  engaged  in  interstate  commerce. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  defendant  is  liable  to  plaintiff  in  the  sum 
of  five  hundred  dollars. 

For  a  fifth  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the  state 
of  Illinois. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as,  "An  act  to  promote  the  safety  of  employes 


166  SUITS    AT    LAV\^ 

and  travelers  upon  railroads  by  limiting  the  hours  of  service  of 
employes  thereon,"  approved  March  4,  1907  (contained  in  34 
Statutes  at  Large,  page  1415),  defendant,  during  the  twenty- 
four  hour  period  beginning  at  the  hour  of  6  :00  o'clock  p.  m. 
on  November  23,  1913,  at  its  office  and  station  at  Blue  Island, 
in  the  state  of  Illinois,  and  within  the  jurisdiction  of  this 
court,  required  and  permitted  its  certain  employe,  to-wit,  John 
Meehan,  to  be  and  remain  on  duty  for  a  longer  period  than 
nine  hours  in  said  twenty-four  hour  period,  to-wit,  from  said 
hour  of  6:00  o'clock  p.  m.  on  said  date,  to  the  hour  of  6:00 
o'clock  a.  m.  on  November  24,  1913. 

Plaintiff  further  alleges  that  during  all  the  time  mentioned 
herein  said  office  and  station  was  one  continuously  operated 
night  and  day,  and  that  said  employe,  while  required  and  per- 
mitted to  be  and  remain  on  duty  as  aforesaid,  by  the  use  of 
the  telegraph  or  telephone,  dispatched,  reported,  transmitted, 
received  and  delivered  orders  pertaining  to  and  affecting  the 
movement  of  trains  engaged  in  interstate  commerce. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  defendant  is  liable  to  plaintiff  in  the  sum 
of  five  hundred  dollars. 

For  a  sixth  cause  of  action,  plaintiff  alleges  that  defendant 
is,  and  was  during  all  the  times  mentioned  herein,  a  common 
carrier  engaged  in  interstate  commerce  by  railroad  in  the  state 
of  Illinois. 

Plaintiff  further  alleges  that  in  violation  of  the  act  of  con- 
gress, known  as,  "An  act  to  promote  the  safety  of  employes 
and  travelers  upon  railroads  by  limiting  the  hours  of  service  of 
employes  thereon,"  approved  March  4,  1907  (contained  in  34 
Statutes  at  Large,  page  1415),  defendant,  during  the  twenty- 
four  hour  period  beginning  at  the  hour  of  6:00  o'clock  p.  m. 
on  November  24,  1913,  at  its  office  and  station  at  Blue  Island, 
in  the  state  of  Illinois,  and  within  the  jurisdiction  of  this 
court,  required  and  permitted  its  certain  employe,  to-wit,  John 
Meehan,  to  be  and  remain  on  duty  for  a  longer  period  than 
nine  hours  in  said  twenty-four  hour  period,  to-wit,  from  said 


DECLARATIOXS   AND   PETITIONS.  167 

hour  of  6:00  o'clock  p.  m.  on  said  date,  to  the  hour  of  6:00 
o'clock  a.  m.  on  November  25,  1913. 

Plaintiff  further  alleges  that  during  all  the  time  mentioned 
herein  said  office  and  station  was  one  continuously  operated 
night  and  day,  and  that  said  employe,  while  required  and  per- 
mitted to  be  and  remain  on  duty  as  aforesaid  by  the  use  of  the 
telegraph  or  telephone,  dispatched,  reported,  transmitted,  re- 
ceived and  delivered  orders  pertaining  to  and  affecting  the 
movement  of  trains  engaged  in  interstate  commerce. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  defendant  is  liable  to  plaintiff"  in  the  sum 
of  five  hundred  dollars. 

Wherefore,  plaintiff  prays  judgment  against  defendant  in  the 
sum  of  three  thousand  dollars  and  its  costs  herein  expended. 

A.  B., 
United  States  Attorney. 

(1)  The  statute  relating  to  the  number  of  consecutive  hours  during 
which  an  employe  of  a  railroad  engaged  in  interstate  commerce 
might  be  kept  at  work  is  usually  called  the  Hours  of  Service  Act,  and 
is  found  in  34  Stat.  L.  1415,  and  as  amended,  in  39  Stat.  L.  61,  the 
amendment  prescribing  principally  a  minimum   penalty  for  violation. 

The  action  provided  by  this  act  is  civil,  and  the  rules  of  civil 
procedure  therefore  govern.  U.  S.  v.  K.  C.  Sou.  Ry..  202  Fed.  828; 
Delano  v.  U.  S.,  220  Fed.  635.  The  pleader  is  not  required  to  state  his 
cause  of  action  with  the  exactness  and  particularity  that  would  be 
necessary  in  a  criminal  indictment.  U.  S.  v.  Houston  Belt  &  Ter- 
minal Co.,  205  Fed.  344,  125  C.  C.  A.  481.  Nor  need  the  petition 
allege  that  the  case  presented  does  not  fall  within  the  exceptions  of 
the  act,  such  matter  being  appropriate  for  defense.  U.  S.  v.  G.  N. 
Ry.  Co.,  220  Fed.  630. 

A  separate  offense  is  committed  and  a  separate  penalty  is  incurred 
for  each  employe  on  the  same  train  kept  on  duty  contrary  to  the 
statute  by  reason  of  the  same  delay.  M.  K.  &  T.  Ry.  Co.  v.  U.  S., 
231   U.  S.  112,  58  L.  Ed.   144. 

Keeping  an  operator  at  work  an  excessive  number  of  hours  in 
intrastate  traffic  where  a  part  of  his  time  is  taken  in  interstate  traffic, 
is  a  violation  of  the  act.    Denver  &  I.  R.  Co.  v.  U.  S.,  236  Fed.  685. 

Numerous  groups  of  facts  set  up  in  an  answer  which  will  not 
constitute  a  defense  are  set  out  in  U.  S.  v.  Missouri  Pacific  R.  Co., 
235  Fed.  944. 

See  the  notes  dealing  with  this  act  in  L.  R.  A.  1915D,  page  408, 
and  supplementary  note  in  L.  R.  A.  1917A,  page  1202. 


168  SUITS    AT    LAW. 

No.  82. 

(Another  violation.) 

Complaint  in  Suit  for  Violation  of  Hours  of  Service  Act  of 
the  United  States. 
[Caption.] 

Plaintiff  alleges  that  in  violation  of  the  act  of  congress, 
known  as,  "An  act  to  promote  the  safety  of  employes  and 
travelers  upon  railroads  by  limiting  the  hours  of  service  of 
employes  thereon,"  approved  March  4,  1907  (contained  in  34 
Statutes  at  Large,  page  1415),  said  defendant,  beginning  at 
the  hour  of  10:40  o'clock  p.  m.  on  October  2,  1912,  upon  its 
line  of  railroad  at  and  between  the  stations  of  Parker  in  the 
state  of  Arizona,  and  Los  Angeles  in  the  state  of  California 
within  the  jurisdiction  of  this  court,  required  and  permitted 
its  certain  brakeman  and  employe,  to- wit.  W.  F.  Rosso w,  to 
be  and  remain  on  duty  as  such  for  a  longer  period  than  sixteen 
consecutive  hours,  to-wit,  from  said  hour  of  10:40  o'clock  p.  m. 
on  said  date,  to  the  hour  of  8  :25  o'clock  p.  m.  on  October  3, 
1912. 

Plaintiff  further  alleges  that  said  employe,  while  required 
and  permitted  to  be  and  remain  on  duty  as  afore.said.  was 
engaged  in  and  connected  with  the  movement  of  said  defend- 
ant's train  17  drawn  by  its  own  locomotive  engine  No.  1276, 
said  train  being  then  and  there  engaged  in  the  movement  of 
interstate  traffic. 

Plaintiff  further  alleges  that  by  reason  of  the  violation  of 
said  act  of  congress,  said  defendant  is  liable  to  plaintiff  in 
the  sum  of  five  hundred  dollars. 

Wherefore,  plaintiff  prays  judgment  against  said  defendant 
in  the  sum  of  five  hundred  dollars,  and  its  costs  herein  ex- 
pended. A.   B., 

United  States  Attorney. 


DECLARATIONS  AND  PETITIONS.  l69 

No.  83. 

Answer  in  Suit  for  Violation  of  Federal  Hours  of  Service  Act. 

[Caption.] 

Now  comes  the  Atchison,  Topeka  &  Santa  Fe  Railway  Com- 
pany, defendant  in  the  above  entitled  cause,  and  in  answer  to 
the  complaint  of  the  plaintiff  in  said  action  respectfully  sliows: 

I.  That  it  is  and  was  at  the  times  mentioned  in  said  com- 
plaint a  common  carrier  engaged  in  interstate  commerce  sub- 
stantially as  alleged  in  said  complaint ;  that  on  or  about  the 
times  mentioned  in  said  complaint  it  retained  in  service  the 
certain  employes  named  in  said  complaint  in  excess  of  16  hours, 
substantially  as  stated  in  said  complaint. 

II.  And  for  further  answer  and  defence  to  said  complaint 
this  defendant  shows : 

That  said  station  of  Parker  is  a  terminal  of  this  defendant 
and  the  terminal  from  which  said  employes  were  engaged  by 
this  defendant  to  operate  and  accompany  said  train  to  the  city 
of  Los  Angeles,  in  the  state  of  California,  which  is  the  terminal 
to  which  said  employes  were  destined  at  the  time  stated  in  the 
complaint ;  that  the  schedule  and  usual  time  of  said  train  in 
going  from  said  Parker  to  said  Los  Angeles  is  and  was  at  the 
times  mentioned  in  said  complaint  much  less  than  16  hours, 
to-wit,  11  hours  and  5  minutes,  and  that  said  train  would,  at 
the  time  mentioned  in  said  complaint,  have  made  said  run  in 
about  11  hours  and  5  minutes,  and  in  much  less  than  16  hours, 
but  for  certain  casualties  and  unavoidable  accidents,  and  for 
certain  causes  which  could  not  have  been  foreseen  by  and  were 
not  known  to  said  defendant,  or  any  of  its  officers  or  agents  at 
the  time  when  said  crew  left  said  terminal  at  Parker ;  that  is 
to  say,  said  train  was  delayed  at  certain  stations  between  Cadiz 
and  Barstow  by  reason  of  congestion  of  trains  due  to  certain 
washouts  caused  by  storm  waters  shortly  before  the  passage  of 
said  train,  which  washouts  had  delayed  a  number  of  passenger 
trains  on  the  main  line  of  this  defendant,  congesting  all  traffic 
on  said  line  and  causing  necessary  delay  to  all  trains ;  but  that 
said  delays,  aggregating  2  hours  and  30  minutes  before  reach- 


170  SUITS    AT    LAW. 

ing  the  station  of  Barstow  would  not  have  caused  said  crew  to 
exceed  the  time  of  16  hours  in  reaching  said  station  of  Los 
Angeles. 

Said  train  left  Barstow  at  7  :45  a.  m.  October  3,  and  shortly 
thereafter,  at  8:30  a.  ni.,  an  axle  broke  under  the  tank  of  the 
engine  of  said  train,  whereby  said  train  was  delayed  6  hours 
and  10  minutes,  altliough  every  effort  was  made  to  remedy  the 
accident  and  proceed  at  the  earliest  possible  moment ;  that  the 
breaking  of  the  axle  was  a  casualty  and  unavoidable  accident, 
and  was  the  result  of  causes  which  were  not  known  to  this 
defendant,  or  to  any  of  its  officers  or  agents,  when  said  engine 
left  its  terminal,  to-wit,  said  station  of  Barstow,  and  that 
said  casualty  could  not  have  l)een  foreseen  when  said  engine 
left  said  Barstow. 

Wherefore,  defendant  prays  that  said  action  may  be  dis- 
missed, and  that  it  may  have  judgment  for  its  costs. 

Dated  March  29,  1913. 

E.  W.  Camp, 

U.  T.  Clotfelter, 

[Veriftcation.]  Attorneys  for  Defendant. 


No.  84. 

Action  on  Judgment  against  Assignee  of  Debtor's  Assets. 

[Caption.] 

The  plaintiff  complains  of  the  defendant  and  alleges  : 

First:  Upon  information  and  belief  that  the  defendant.  The 
Baker  Motor  Vehicle  Company,  now  is,  and  at  all  times  here- 
inafter mentioned  was,  a  corporation  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of  Ohio. 

Second:  Upon  information  and  belief,  that  defendant,  Ameri- 
can Bonding  Company,  of  Baltimore,  prior  to  November,  1908, 
and  since  then  was  and  now  is  a  foreign  corporation  organized 
and  existing  under  the  laws  of  the  state  of  Maryland. 

Third:  That  plaintiff,  T.ouis  R.  TTunter,  on  February  4,  1909, 
in  the  supreme  court  of  the  state  of  New  York,  county  of 


DECr.ARATIONS  AND  PETITIONS.  171 

Oswego,  duly  recovered  judgment  against  Clarence  B.  Rice 
and  The  C.  B.  Rice  Company,  a  New  York  corporation,  in  the 
sum  of  $8,329.75,  upon  which  said  judgment  execution  was 
duly  issued  and  has  been  duly  returned  unsatisfied  and  said 
judgment  is  wholly  unsatisfied  and  unpaid. 

Fourth:  That  on  or  about  October  1,  1907,  said  The  C.  B. 
Rice  Company,  the  New  York  corporation  aforesaid,  trans- 
ferred, assigned  and  set  over  unto  The  Baker  Motor  Vehicle 
Company  of  New  York,  a  New  York  corporation,  all  the 
assets  of  said  The  C.  B.  Rice  Company,  and  the  said  Baker 
Motor  Vehicle  Company  of  New  York  (a  corporation  organ- 
ized and  caused  to  be  incorporated  by  the  defendant.  The  Baker 
Motor  Vehicle  Company,  and  its  oflicers  and  agents  for  the 
very  purpose  with  a  capital  of  only  $10,000  and  only  $500  of 
that  paid  in)  in  consideration  of  the  transfer  and  assignment 
of  said  assets  to  it  by  said  The  C.  B.  Rice  Company,  agreed  to 
pay  all  the  debts  of  said  The  C.  B.  Rice  Company. 

Fifth:  Upon  information  and  belief,  that  at  the  time  when 
said  transfer  by  said  The  C.  B.  Rice  Company  to  The  Baker 
Motor  Vehicle  Company,  of  New  York,  the  assets  of  said  The 
C.  B.  Rice  Company  amounted  to  over  $100,000  and  were 
more  than  sufficient  to  meet  its  liabilities,  and  that  prior  to,  and 
at  the  time  of  said  transfer  by  said  The  C.  B.  Rice  Company 
to  The  Baker  Motor  Vehicle  Company,  of  New  York,  all  the 
creditors  of  the  said  The  C.  B.  Rice  Company,  except  the  plain- 
tiff, consented  to  said  assignment  and  agreed  to  accept  the 
obligations  of  said  The  Baker  Motor  Vehicle  Company  of  New 
York  in  full  satisfaction  of  their  claims  against  said  The  C.  B. 
Rice  Company,  and  their  said  claims  were  thereafter  so  satis- 
fied and  paid. 

Sixth:  Upon  information  and  belief  that  said  The  C.  B.  Rice 
Company  was  organized  by  said  defendant.  The  Baker  Motor 
Vehicle  Company,  for  the  purpose  of  selling  in  New  York  City 
and  its  vicinity  electric  vehicles  and  parts  manufactured  by  the 
defendant.  The  Baker  Motor  Vehicle  Company,  and  that  a 
majority  of  the  stock  of  said  The  C.  B.  Rice  Company  was 


172  SUITS    AT    LAW. 

controlled  and  owned  by  the  defendant,  The  Baker  Motor 
Vehicle  Company,  and  it  managed,  controlled  and  directed  all 
its  business  and  corporate  affairs,  and  the  minutes  of  said  The 
C.  B.  Rice  Company  were  submitted  to  and  approved  by  the 
oflficers  and  agents  of  the  defendant.  The  Baker  Motor  Vehicle 
Company,  before  such  minutes  became  the  corporate  action  of 
said  The  C.  B.  Rice  Company. 

Seventh:  Upon  information  and  belief  that  a  majority  of  the 
stock  of  the  corporation  The  Baker  Motor  Vehicle  Company 
of  New  York  was  owned  and  controlled  by  defendant,  The 
Baker  Motor  Vehicle  Company,  and  one  R.  C.  Norton,  the 
treasurer  of  the  defendant.  The  Baker  Motor  Vehicle  Com- 
pany, and  George  H.  Kelly,  the  attorney  for  the  defendant, 
The  Baker  Motor  Vehicle  Company,  owned  stock  in  The  Baker 
Motor  Vehicle  Company  of  New  York,  and  were  officers  of 
said  company. 

Eighth:  That  a  petition  in  involuntary  bankruptcy,  which 
petition  was  verified  October  13,  1908,  was  filed  against  The 
Baker  Motor  Vehicle  Company  of  New  York  in  the  district 
court  of  the  United  States  for  the  Southern  District  of  New 
York,  and  thereafter  and  on  October  14,  1908.  a  receiver  was 
appointed  in  said  United  States  district  court  aforesaid  for  the 
Baker  Motor  Vehicle  Company  of  New  York,  and  there  came 
into  the  hands  of  said  receiver  assets  of  The  Baker  Motor 
Vehicle  Company  of  New  York  amounting  in  value  to  upwards 
of  $40,000;  that  thereafter  and  on  or  about  October  17,  1908, 
in  a  petition  for  an  injunction  to  restrain  this  plaintiff  from 
proceeding  with  the  action  against  The  C.  B.  Rice  Com- 
pany, and  which  resulted  in  the  judgment  in  favor  of  the  plain- 
tiff as  set  forth  in  paragraph  third  hereof,  it  was  stated  that 
the  alleged  bankrupt  (Baker  Motor  Vehicle  Company  of  New 
York)  is  or  may  be  ultimately  liable,  in  case  a  judgment  is 
obtained  against  The  C.  B.  Rice  Company. 

Ninth:  That  thereafter  and  by  order  of  the  United  States 
district  court  dated  December  1,  1908,  the  receiver  appointed 
by  the  United  States  district  court,  sold,  assigned,  transferred 


DECLARATIONS   AND  PETITIONS.  173 

and  set  over  unto  the  defendant,  The  Baker  Motor  Vehicle 
Company,  all  the  assets  of  The  Baker  Motor  Vehicle  Com- 
pany of  New  York  upon  the  agreement  and  stipulation  by  the 
defendant.  The  Baker  Motor  Vehicle  Company,  that  said  The 
Baker  Motor  Vehicle  Company  would  execute  and  deliver  to 
the  plaintiff  herein  an  undertaking  or  bond  which  said  bond 
should  be  conditioned  that  the  defendant,  The  Baker  Motor 
Vehicle  Company,  would  pay  to  the  plaintiff  such  sum  or  sums 
as  he  might  be  entitled  to  receive  in  law  out  of  the  amount 
received  by  said  receiver  for  the  distribution  to  creditors,  on 
the  plaintiff's  claim  as  set  up  in  a  certain  action  then  pending 
in  the  supreme  court  of  the  state  of  New  York,  county  of 
Oswego,  which  said  action  resulted  in  said  judgment  in  favor 
of  the  plaintiff  as  set  forth  in  paragraph  "Third"  of  this  com- 
plaint 

Tenth:  That  in  pursuance  of  said  agreement  and  stipulation 
the  defendants  executed  and  delivered  to  the  plaintiff  an  agree- 
ment in  writing,  dated  November  25,  1908,  wherein  and  where- 
by said  defendants  agreed  to  pay  to  the  plaintiff  such  sum  or 
sums  as  the  plaintiff  would  be  entitled  in  law  to  receive  out  of 
the  amount  received  by  the  receiver  in  bankruptcy  of  The 
Baker  Motor  Vehicle  Company  of  New  York  for  distribution 
to  creditors  of  said  Baker  Motor  Vehicle  Company  of  New 
York,  upon  plaintiff's  claim  in  the  then  pending  action  referred 
to  in  paragraph  ninth  hereof,  and  which  said  action  resulted 
in  a  judgment  as  set  forth  in  paragraph  "Third"  of  this  com- 
plaint, a  copy  of  which  bond  and  undertaking  is  annexed  here- 
to, marked  "Exhibit  A"  and  made  a  part  hereof. 

Eleventh:  That  there  came  into  the  hands  of  the  receiver  of 
The  Baker  Motor  Vehicle  Company  of  New  York  for  distri- 
bution to  the  creditors  of  The  Baker  Motor  Vehicle  Company 
of  New  York  the  sum  of  $18,000. 

Twelfth:  Upon  information  and  belief,  that  the  plaintiff  now 
is  and  was  the  sole  creditor  of  The  C.  B.  Rice  Company  when 
its  assets  were  sold,  assigned,  transferred  and  set  over  as  afore- 
said to  The  Baker  Motor  Vehicle  Company  of  New  York ;  that 


174  SUITS    AT    LAW. 

The  Baker  Motor  Vehicle  Company  of  New  York  received  the 
assets  of  The  C.  B.  Rice  Company  subject  to  a  first  lien  for 
the  payment  of  the  creditors  of  The  C.  B.  Rice  Company :  that 
plaintiff's  claim  against  The  C.  B.  Rice  Company  must  be  paid 
before  The  Baker  Motor  Vehicle  Company  of  New  York  could 
or  did  acquire  any  title  to  any  part  of  the  property  or  assets  of 
The  C.  B.  Rice  Company :  that  as  to  the  creditors  of  The  Baker 
Motor  Vehicle  Company  of  New  York,  the  plaintiff  has  a 
prior  and  preferred  claim  and  lien  against  the  assets  of  The 
Baker  Motor  Vehicle  Company  of  New  York ;  that  the  plain- 
tiff was  entitled  to  receive  from  the  receiver  in  bankruptcy  of 
The  Baker  Motor  Vehicle  Company  of  New  York  the  just  and 
full  sum  of  $8,329.75,  the  amount  of  plaintiff's  judgment 
against  The  C.  B.  Rice  Company  aforesaid,  with  interest  from 
the  4th  day  of  February,  1909. 

Thirteenth:  That  thereafter  the  plaintiff  duly  demanded 
from  the  defendants  and  each  of  them  payment  of  plaintiff's 
claim  amounting  to  $8,329.75,  with  interest  from  February  4, 
1909,  which  payment  has  been  refused  and  there  is  now  due 
and  owing  to  the  plaintiff  from  the  defendants  the  sum  of 
$8,329.75,  with  interest  from  February  4,  1909,  no  part  of 
which  has  been  paid. 

Wherefore,  plaintiff  demands  judgment  against  the  defend- 
ants in  the  sum  of  $8,329.75,  with  interest  from  the  4th  day 
of  February,  1909,  together  with  costs  and  disbursements  of 
this  action.  A.  B., 

Attorney  for  Plaintiff. 

'[Veritication.'] 


No.  85. 

Complaint  by  Husband  and  Wife  for  Recovery  of  Money  for 
Wife's  Separate  Estate. 

[Caption.] 
To  the  Hon.  Edward  R.  Meek,  Judge  of  said  Court: 

Rada  Pigg,  joined  herein  pro  forma  by  her  husband,  John 
Hutchings  Pigg,  both  citizens  of  the  county  of  Pittsylvania,  in 


DECLARATIONS  AND  PETITIONS.  175 

the  state  of  Virginia,  plaintiffs  in  this  suit,  complain  of  defend- 
ant, The  Citizens'  National  Bank  of  Stamford,  Texas,  of  which 
J.  S.  Morrow  is  president,  and  being  a  corporation  duly  incor- 
porated under  the  laws  of  the  United  States  of  America,  with 
its  office  and  place  of  business  in  the  city  of  Stamford,  Jones 
county,  Texas,  and  a  citizen  of  said  state  of  Texas,  and  an 
inhabitant  of  the  northern  district  of  Texas,  in  the  Abilene 
division  thereof,  and  say : 

First:  That  heretofore,  to-wit,  on  April  1,  1914,  Avoca 
State  Bank,  a  private  corporation,  duly  incorporated  under  the 
laws  of  the  state  of  Texas,  and  having  its  domicile  and  place 
of  business  at  Avoca,  in  Jones  county,  Texas,  issued  to  plain- 
tiff, Rada  Pigg,  its  certificate  of  deposit  on  a  pass-book  of  said 
Avoca  State  Bank  in  words  and  figures  as  follows : 

"Avoca  State  Bank  Debtor,  April  1,  Amount  $10,000,  de- 
scribed on  following  page.  Amount  at  interest  at  the  rate  of 
8  per  cent,  per  annum,  interest  payable  rnonthly  to  credit  of 
Mrs.  J.  H.  Pigg  in  the  Avoca  State  Bank,  Avoca,  Texas. 
Interest  paid  to  April  1,  1914,  H.  H.  Hall,"  in  and  by  which 
said  certificate  of  deposit  said  Avoca  State  Bank  agreed,  prom- 
ised and  bound  itself  to  pay  to  the  said  Mrs.  J.  H.  Pigg,  who 
is  the  same  person  as  Rada  Pigg,  plaintiff  herein,  said  sum  of 
ten  thousand  ($10,000)  dollars,  with  interest  at  8  per  cent, 
per  annum  from  April  1,  1914,  said  interest  payable  monthly 
as  therein  provided. 

Second:  That  on  July  24,  1914,  the  plaintiff,  Rada  Pigg, 
had  on  deposit  in  said  Avoca  State  Bank  the  sum  of  five  hun- 
dred and  fifty-six  and  60-100  ($556.60)  dollars,  which  amount 
was  deposited  by  plaintiff  subject  to  payment  of  checks  drawn 
by  plaintiff,  Rada  Pigg,  on  said  Avoca  State  Bank  and  against 
which  said  deposit  said  Rada  Pigg  has  drawn  checks  aggre- 
gating approximately  three  hundred  ($300)  dollars,  and  the 
balance  of  said  deposit  is  still  unpaid. 

Third:  That  all  of  said  sums  hereinabove  mentioned  were 
and  are  the  separate  property  of  the  plaintiff,  Rada  Pigg. 


176  SUITS    AT    LAW. 

Fourth:  That  on  tlie  14th  day  of  November,  1914,  said  sums 
of  money  and  all  accrued  interest  thereon  were  due  and  pay- 
able by  said  Avoca  State  Bank  to  the  plaintiff,  Rada  Pigg,  and 
were  liabilities  of  said  Avoca  State  Bank  in  favor  of  plaintiff, 
Rada  Pigg. 

Fifth:  That  on  or  about  November  14,  1914,  the  defendant, 
The  Citizens'  National  Bank  of  Stamford,  Texas,  purchased, 
acquired  and  took  charge  and  possession  of  all  of  the  assets  of 
said  Avoca  State  Bank,  and  on  or  about  said  date  the  assets 
of  said  Avoca  State  Bank  were  conveyed,  assigned  and  deliv- 
ered to  said  defendant,  and  for  and  in  consideration  of  the  con- 
veyance, assignment  and  delivery  of  all  of  the  assets  of  said 
Avoca  State  Bank  to  defendant,  defendant  then  and  there 
agreed  in  writing  to  assume  and  did  assume  the  payment  of  all 
of  the  liabilities  of  the  said  Avoca  State  Bank,  and  by  reason 
thereof  the  defendant  became  bound  and  liable  and  promised 
to  pay  to  the  plaintiff,  Rada  Pigg,  the  amount  so  due  and  owing 
by  said  Avoca  State  Bank  the  full  amount  of  principal  and 
interest  so  due  and  owing  by  said  Avoca  State  Bank  to  the  said 
Rada  Pigg,  togetlier  with  interest  on  said  sum  of  ten  thousand 
($10,000)  dollars,  from  April  1,  1914,  at  8  per  cent,  per  an- 
num, and  on  said  balance  of  said  deposit  in  said  Avoca  State 
Bank  from  November  14,  1914,  at  the  rate  of  6  per  cent,  per 
annum,  which  amount  exceeds  $3,000  exclusive  of  interest. 

Sixth:  That  though  often  demanded,  tlie  defendant  has  re- 
fused to  pay  the  plaintiff,  Rada  Pigg,  said  sum  of  money  or 
any  part  thereof,  to  the  damage  of  the  plaintiff,  Rada  Pigg,  in 
the  sum  of  twelve  thousand  ($12,000)  dollars. 

Wherefore,  premises  considered,  plaintiff  prays  that  defend- 
ant be  cited  to  appear  and  answer  herein,  and  that  on  final  hear- 
ing plaintiffs  liave  judgment  for  the  use  and  benefit  of  the 
plaintiff,  Rada  Pigg,  as  her  separate  estate,  for  the  amount  of 
the  debts  aforesaid,  together  with  interest,  costs  of  suit  and 
for  general  relief. 

A.  B.  and  C.  D., 
Attorneys  for  Plaintiffs. 


PLEADINGS   BY    THE    DEFEN^NT,    ETC.  177 

No.  85a. 

Declaration  for  Infringement  of  a  Patent. 
See  under  title  "Patents." 

No.  85b. 

Declaration  for  Infringement  of  a  Copjn-ight  or  Trade-Mark. 

See  under  title  "Copyrigths  and  Trade-Marks." 


PLEADINGS  BY  THE  DEFENDANT  AND  REPLY  BY  THE 

PLAINTIFF. 


No.  86. 

Demurrer  to  Declaration  for  want  of  Jurisdiction  (1). 

[Caption.] 

The  defendant,  C.  D.,  comes  by  his  attorney  and  demurs  to 
the  petition  (or  declaration,  as  the  case  may  be),  for  the  reason 
that  the  said  petition  does  not  state  a  cause  of  action  against 
this  defendant  within  the  jurisdiction  of  this  court. 

R.  Y., 
Attorney  for  Defendant. 

(1)  Where  the  petition  or  declaration  does  not  set  forth  a  ground 
of  federal  jurisdiction,  the  parties  may  raise  the  question  by  demurrer 
or  the  court  may  dismiss  the  case  sua  sponte.  Act  of  March  3,  1875, 
18  Stat.  L.  470,  Sec.  5;  Nashua  R.  R.  Co.  v.  Lowell  R.  R.  Co.,  136 
U.  S.  372,  34  L.  Ed.  363;  R.  R.  Co.  v.  Swan,  111  U.  S.  379,  28  L.  Ed.  462. 


No.  87. 

Plea  to  the  Jurisdiction  (1). 

[Caption.] 

C.  D.,  the  above-named  defendant,  specially  appearing  under 
protest  for  the  purpose  of  this  plea  and  for  no  other,  says  that 


178  SUITS    AT    LAW. 

this  court  has  no  jurisdiction  of  this  case  for  the  reason  that 
the  said  C.  D.  is  not  a  citizen  or  an  inhabitant  of  the  state  of 

,  as  set  forth  in  the  petition,  but  that  he  is  a  citizen  and 

resident  of  the  state  of ,  of  which  state  the  plaintiff  is 

also  a  citizen. 

Wherefore,  he  prays  that  this  case  be  dismissed  and  that  he 
go  hence  without  day. 

C.  D. 

(1)  Where  the  declaration  sets  forth  a  case  within  the  federal  juris- 
diction and  the  defendant  wishes  to  contest  the  facts  he  must  inter- 
pose a  plea  to  the  jurisdiction.     Hartog  v.  Memory,  116  U.  S.  588. 

Where  the  state  practice  permits  such  pleading  under  R.  S.  Sec. 
914  the  federal  courts  will  permit  issue  of  jurisdiction  to  be  raised  in 
an  answer.     Roberts  v.  Lewis,  144  U.  S.  653. 

The  general  rule  is  that  by  pleading  to  the  merits,  the  defendant 
admits  averments,  which  state  facts  sufficient  to  establish  jurisdiction. 
Sheppard  v.  Graves,  14  How.  505;  Butchers  and  Drovers  Stockyards 
Co.  V.  L.  &  N.  R.  Co.,  67  Fed.  Rep.  40. 

Lack  of  jurisdiction  can  not  be  supplied  by  anything  set  up  by 
way  of  defense.  Baker  v.  Eastman,  206  Fed.  865,  124  C.  C.  A.  525. 
Where  the  suit  is  against  a  state  dairy  and  food  commissioner,  objec- 
tion that  the  suit  is  against  a  state  and  therefore  the  court  is  without 
jurisdiction,  should  be  raised  by  demurrer  and  not  by  the  court  suo 
motu.  Scully  v.  Bird,  209  U.  S.  481,  52  L.  Ed.  899.  Where  jurisdiction 
is  invoked  on  the  ground  of  diversity  of  citizenship,  the  court  will 
entertain  a  motion  to  dismiss  for  lack  of  jurisdiction  based  on  the 
proofs  taken  by  a  master  to  whom  the  case  has  been  referred.  Steig- 
leder  v.  McQuestion,  198  U.  S.  141,  49  L.  Ed.  986.  But  in  Caddie  v. 
M'ann,  147  Fed.  955,  it  is  said  that  where  jurisdiction  is  predicated  on 
diversity  of  citizenship,  attack  thereon  should  preferably  be  mr'.de  by 
plea,  which  admits  of  examination  and  cross-examination,  instead  of 
by  motion,  with  ex  parte  affidavits. 

"A  question  of  jurisdiction  is  fundamental  and  underlies  all  other 
questions  arising  in  the  course  of  litigation,  and  it  may  be  raised  at 
any  time,  in  any  mode,  and  at  any  stage,  as  every  step  taken  in  the 
progress  of  a  cause  is  an  assertion  of  jurisdiction,  and  the  court 
may  of  its  own  motion  make  the  objection  or  institute  such  investi- 
gation as  may  be  necessary  to  establish  or  defeat  it.  This  is  espe- 
cially true  of  federal  courts,  as  being  courts  of  statutory  or  limited 
jurisdiction."     Kreider  v.  Cole,  149  Fed.  647,  79  C.  C.  A.  339. 

An  objection  to  jurisdiction  may  be  taken  by  answer  where  depend- 
ent on  a  question  of  fact,  and  the  issue  submitted  to  the  jury  inde- 
pendently. Kirven  v.  Virginia  and  Carolina  Chemical  Co.,  145  Fed. 
288,  76  C.  C.  A.  172. 


PLEADINGS   BY   THE   DEFENANT,    ETC.  179 

Where  a  complaint  averred  that  plaintiff  "is  a  bona  fide  resident  of 
the  city  and  county  of  San  Francisco,  state  of  California,"  the  defend- 
ant filed  a  motion  to  set  aside  service  and  to  dismiss  the  action  for 
lack  of  jurisdiction,  and  the  plaintiff  insisted  that  the  objection  must 
be  made  by  answer,  but  the  court  said  that  however  the  question  is 
raised  it  must  be  regarded.    Koike  v.  A.  T.  &  S.  F.  R.  Co.,  157  Fed.  623. 

To  the  same  effect,  see  Briggs  v.  Traders'  Co.,  145  Fed.  254. 

In  Stockwell  v.  Boston  &  Maine  R.  Co.,  131  Fed.  153,  a  demurrer 
was  held  to  be  the  proper  pleading  to  raise  the  question  of  juris- 
diction where  the  averment  of  citizenship  was  insufficient. 

Motions  are  generally  appropriate  only  in  the  absence  of  remedies 
by  regular  pleadings,  and  can  not  be  made  available  to  settle  im- 
portant questions  of  law,  or  to  dispose  of  the  merits  of  the  case. 
I.  C.  Ry.  Co.  V.  Adams,  180  U.  S.  28,  45  L.  Ed.  410.  This  language 
was  used  in  a  case  where  the  objection  was  made  by  motion  that 
the  suit  was  really  one  against  a  state. 

Under  the  conformity  act,  the  district  courts  of  the  United  States 
"follow  the  practice  of  the  courts  of  the  states  in  regard  to  the 
form  and  the  order  of  pleading,  including  the  manner  in  which  objec- 
tions may  be  taken  to  the  jurisdiction  and  the  question  whether 
objections  to  the  jurisdiction  and  defenses  on  the  merits  shall  be 
pleaded  successively  or  together."  Southern  Pacific  Co.  v.  Denton, 
146  U.  S.  202,  209,  36  L.  Ed.  942.  And  where  want  of  citizenship  is 
apparent  on  the  face  of  the  petition,  a  special  appearance  for  the 
sole  purpose  of  filing  a  demurrer  to  raise  the  question  of  jurisdiction, 
which  is  overruled,  does  not  waive  the  jurisdictional  question  if  an 
exception  is  saved,  and  answer  is  later  filed.  Ibidem.  Nor  in  such 
case  is  the  question  of  jurisdiction  res  judicata.  Tate  v.  Brinser, 
226  Fed.  878. 

A  plea  in  abatement  to  jurisdiction  is  necessary  only  when  the 
citizenship  averred  is  such  as  to  support  jurisdiction  and  defendant 
desires  to  controvert  the  averment.  Coal  Co.  v.  Blatchford,  11  Wall. 
172,  20  L.  Ed.  179. 

There  is  no  lack  of  authority  that  the  court  may,  suo  motu,  inquire 
into  jurisdiction,  including  such  late  cases  as  Continental  National  Bank 
V.  Buford,  191  U.  S.  119,  48  L.  Ed.  119,  and  L.  &  N.  R.  R.  v.  Mottley, 
211  U.  S.  149,  53  L.  Ed.  126,  where  many  authorities  are  cited;  also 
Sclarenco  v.  Chicago  Bonding  Co.,  236  Fed.  592.  And  this  true  even 
if  the  parties  forbear  to  make  the  question  of  jurisdiction,  or  consent 
that  the  case  be  considered  upon  its  merits.  Metcalf  v.  Watertown, 
128  U.  S.  586,  32  L.  Ed.  543. 

An  attack  on  the  jurisdiction  of  the  court  will  be  entertained 
whether  made  by  objection  to  complaint,  plea  in  abatement,  or 
during  trial.     Amer.  Sheet,  etc.,  Co.  v.  Wenzler,  227  Fed.  321. 

The  question,  of  course,  may  be  raised  by  a  motion  to  quash  a 
marshal's  return  of  service,  on  the  ground  that  the  corporation  de- 
fendant was  not  suable  in  the  district,  or  that  service  was  attempted 


180  SUITS    AT    LAW. 

to  be  made  upon  one  without  authority  to  acknowledge  it.  Frey  v. 
Cudahy  Co.,  228  Fed.  209,  in  which  case  the  court  withheld  decision 
upon  the  motion  to  permit  the  service  upon  the  corporation  in  the 
district  of  its  residence,  as  permitted  by  the  Clayton  act. 

A  motion  to  dismiss, on  the  ground  that  the  plaintiff  in  an  equity 
action  has  an  adequate  remedy  at  law  will  not  lie  under  equity  rule 
22  and  the  Judicial  Code,  Sec.  274a,  which  have  swept  away  all 
technical  objections  whatever.  While  the  constitution  preserves  the 
right  to  trial  by  jury,  the  practice  as  to  raising  the  objection  is 
changed;  defendant's  motion  to  dismiss  on  the  ground  mentioned 
may  be  taken  as  a  motion  to  transfer  the  case  to  the  law  side,  if 
the  remedy  at  law  is  adequate.     Collins  v.  Bradley  Co.,  227  Fed.  199. 


No.  88. 
General  Demurrer. 

[Caption.] 

The  defendant,  the  C.  D.  Co.,  comes  by  its  attorneys  and 
demurs  to  the  petition  [or,  declaration,  or  as  may  be],  for  the 
reason  that  the  said  petition  does  not  state  a  cause  of  action 
against  this  defendant  upon  which  this  plaintiff  can  recover. 

R.  Y., 
Attorney  for  Defendant. 

I,  R.  Y,,  do  hereby  certify  that  I  am  counsel  for  the  defend- 
ants in  the  above-entitled  action,  and  that,  in  my  opinion,  the 
foregoing  demurrer  is  well  founded. 

R.  Y. 


No.  89. 

Demurrer  to  Declaration  for  Damages  for  Personal  Injury. 

[Caption.] 

The  defendant,  C.  D.  Railway  Company,  comes  by  attorney 
and  demurs  to  the  original  declaration  and  the  amended  decla- 
ration of  the  plaintifT  in  this  case  and  for  causes  of  demurrer 
shows : 

First:  That  said  original  declaration  as  a  whole  sets  out  no 
cause  of  action  against  this  defendant  upon  which  said  plaintiff 
as  administrator  can  recover. 


PLEADIXGS    BY    THE    DEFENANT,    ETC.  181 

Second:  That  said  amended  declaration  as  a  whole  sets  out 
no  cause  of  action  against  this  defendant  upon  which  said 
plaintiff  as  administrator  can  recover. 

Third:  Defendant  demurs  to  each  count  in  said  original 
declaration  on  the  ground  that  plaintiff  has  not  alleged  facts 
which  entitle  him  to  recover  against  this  defendant. 

Fourth:  Said  defendant  likewise  demurs  to  said  amended 
declaration  because  therein  the  plaintiff  has  set  out  no  facts 
which  entitle  him  to  recover  against  this  demurrant. 

Fifth:  This  defendant  demurs  to  the  first  count  of  said 
original  declaration  because  therein  plaintiff  shows  that  the 
plaintiff's  intestate  was  an  employe  of  the  Northern  Railway 
Company,  and  that  duty  was  owed  to  him  alone  by  said  rail- 
way company  and  that  if  negligence  of  any  person  caused  the 
injuries  to  him  resulting  in  his  death  it  was  the  negligence  of 
his  co-employes  and  fellow-servants  for  which  negligence  his 
administrator  has  no  right  to  recover. 

Sixth:  This  defendant  further  demurs  to  the  first  count  of 
said  original  declaration  because  the  allegations  and  charge  in 
said  count  are  not  particular  as  it  is  by  law  required  that  they 
should  be,  but  are  so  general,  vague,  indefinite  and  uncertain 
that  this  defendant  can  not  safely  and  intelligently  plead  to 
them. 

Seventh:  This  defendant  demurs  to  tlie  second  count  of  said 
original  declaration  on  the  ground  that  plaintiff's  intestate  was 
alone  an  employe  of  the  Northern  Railway  Company  and  that 
duty  was  owed  alone  to  him  by  that  company  and  that  he  has 
so  charged,  and  that  if  the  negligence  of  any  one  caused  the 
injuries  to  him  resulting  in  his  death  it  was,  as  he  has  alleged, 
the  negligence  of  said  Northern  Railway  Company,  and  of  its 
servants,  his  co-employes,  and  because  he  has  alleged  no  specific 
act  of  negligence  against  this  demurrant  for  which  he  could 
recover. 

Eighth:  This  defendant  further  demurs  to  said  second  count 
because  the  allegations  thereof  are  so  vague,  indefinite  and  un- 
certain that  this  defendant  can  not  safely  and  intelligently  plead 


182  SUITS    AT    LAW, 

thereto,  and  because  they  are  too  general  and  are  not  particular 
as  is  by  law  required. 

NiniJi:  This  defendant  demurs  to  the  amended  count  of  the 
plaintiff's  declaration  because  the  suit  is  against  three  defend- 
ants and  in  the  other  counts  of  the  declaration  a  joint  recovery 
is  sought  while  in  the  said  amended  count  the  allegations  as 
to  the  defects  in  the  engine  and  of  the  negligence  applied  ex- 
clusively to  defendant.  Northern  Railway  Company,  and  in  no 
wise  to  this  defendant,  and  there  is  no  allegation  of  negligence 
as  to  this  defendant  as  regards  the  alleged  defects  in  said 
engine  or  otherwise,  and  if  recovery  were  to  be  had  by  reason 
of  said  defect  it  must  necessarily  be  against  the  Northern 
Railway  Company  alone  while  the  proceeding  is  against  all 
the  defendants  jointly. 

Tenth:  This  defendant  demurs  to  the  fourth  count  in  said 
original  declaration  on  the  ground  that  the  allegations  of  neg- 
ligence are  so  vague,  indefinite  and  uncertain  that  this  defend- 
ant can  not  join  issue  thereon  and  can  not  safely  or  intelligently 
plead  tliereto,  notwithstanding  and  contrary  to  the  require- 
ments of  law  that  said  allegations  should  be  definite  and  cer- 
tain ;  and  because  in  and  by  said  count  no  duty  is  shown  to 
have  been  owing  by  this  demurrant  to  plaintiff's  intestate  and 
because  the  negligence  resulting  in  the  death  of  plaintiff's  in- 
testate, if  any  existed,  was  that  of  said  intestate's  co-employes. 

Wherefore,  this  defendant  demurs  and  prays  judgment,  of 
the  court  on  each  and  all  of  the  grounds  of  demurrer  herein 
taken.  R.  Y., 

Attorney  for  C.  &  D,  Ry.  Co. 


No.  90. 

Demurrer  Based  on  Case  being  One  under  Maritime  Law. 

Now  comes  The  Zenith  Steamship  Company,  defendant 
herein,  and  files  this  its  demurrer  to  the  amended  petition  of 
the  plaintiff  herein  on  the  ground  that  the  said  amended  petition 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action 
against  this  defendant,  because : 


PLEADINGS  BY   THE  DEFENANT,   ETC.  183 

(a)  It  appears  that  the  plaintiff  was  a  seaman  on  board  the 
defendant's  steamer,  and  the  duty  of  the  defendant  to  the  said 
plaintiff  was  therefore  governed  by  the  maritime  law  of  the 
United  States. 

(b)  The  negligence  which  caused  the  injuries  sustained  by 
the  plaintiff  was  solely  that  of  the  first  mate  on  board  the  de- 
fendant's said  steamer;  and 

(c)  Under  the  maritime  law  the  said  first  mate  was  a  fellow- 
servant  of  the  said  plaintiff  and  for  his  negligence  this  defend- 
ant is  not  liable  to  the  plaintiff. 

A.  B.  and  C.  D., 
Attorneys  for  Defendant. 


No.  91. 

Demurrer  to  Complaint — General  and  Special. 

[Caption.] 

Comes  now  the  above-named  defendant, ,  and  demurs 

to  the  complaint  on  file  herein,  and  for  grounds  of  demurrer 
specifies :  ^ 

I.  That  several  causes  of  action  have  not  been  separately 
stated,  to-wit,  an  action  upon  an  account  stated  to  recover  the 
sum  of  forty-five  hundred  dollars  ($4,500),  an  action  to  re- 
cover the  reasonable  value  of  the  work  and  labor  performed 
and  services  rendered,  in  connection  with,  and  relating  to,  said 
water  rights  and  said  power  company,  in  the  sum  of  twenty- 
five  hundred  dollars  ($2,500),  and  an  action  to  recover  money 
expended  by  plaintiff  for  defendant's  use  in  the  sum  of  four 
hundred  eleven  dollars  ($411). 

II.  That  said  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

III.  Defendant  specially  demurs  to  said  complaint  in  that  it 
does  not  appear  that  said  Charles  A.  Nones,  as  president,  agent 
and  general  superintendent,  has  the  right  and  power  for  and 
in  behalf  of  said  defendant  corporation,  to  engage  or  employ 
plaintiff  to  perform  the  services  or  make  the  expenditures 
claimed  as  set  forth  in  said  complaint. 


184  SUITS    AT    LAW. 

Wherefore  said  defendant  prays  that  said  plaintiff  take  noth- 
ing by  his  said  action,  and  that  it  be  hence  dismissed  with  its 
costs  herein  expended.  A.  B., 

Attorney  for  Defendant. 

The  undersigned,  counsel  for  the  defendant  in  the  above- 
entitled  cause,  does  hereby  certify  that  the  foregoing  demurrer 
is  not  filed  for  delay,  and  that  in  the  opinion  of  said  counsel 
the  same  is  well  taken  in  point  of  law.  a    g 

Attorney  for  Defendant. 


No.  92. 

Demurrer  to  Pleas. 

[Caption.] 

And  the  plaintiff,  by  its  attorneys,  A.  and  B.,  comes  and  de- 
fends, etc.,  and,  as  to  the  fourth,  fifth  and  sixth  pleas  of  the 
defendant  above  pleaded,  says  that  the  matters  and  things  in 
said  fourth,  fifth  and  sixth  pleas  contained,  in  manner  and  form 
as  the  same  are  herein  set  forth  and  alleged,  are  not  sufficient 
in  law  to  bar  the  plaintiff  from  maintaining  its  aforesaid  action, 
and  that  it,  the  plaintiff,  is  not  bound  by  law  to  answer  the 
same ;  and  this  the  plaintiff  is  ready  to  verify. 

Wherefore,  for  want  of  sufficient  fourth,  fifth  and  sixth 
pleas  in  this  behalf,  the  plaintiff  prays  its  damages,  etc.,  to  be 
adjudged  to  it,  etc.  A.  and  B., 

Attorneys. 


No.  93. 

Demurrer  to  Answer. 
[Caption.] 

Now  comes  the  plaintiff,  and  demurs  to  the  amended  answer 
of  defendant  filed  herein,  for  the  reason  that  the  same  does 
not  state  facts  sufficient  to  constitute  a  defense  to  the  cause  of 
action  alleged  in  the  petition. 

Wherefore,  plaintiff  prays  judgment  as  in  its  original  peti- 
tion. R.  Y., 

Attorney  for  Plaintiff. 


PLEADINGS   BY    THE    DEFE.-JANT,    ETC.  185 

No.  94. 

General  Demurrer  to  an  Amended  Answer. 

[Caption.] 

Now  comes  the  plaintiff  and  demurs  to  the  first  ground  of 
defense  contained  in  the  second  amended  answer  of  the  defend- 
ant filed  herein,  for  the  reason  that  the  facts  and  statements 
therein  contained  are  not  sufficient  in  law  to  constitute  a  de- 
fense to  plaintiff's  petition  or  the  several  causes  of  action  there- 
in contained 

Plaintiff  also  demurs  to  that  portion  of  the  second  amended 
answer  denominated  the  second  ground  of  defense,  for  the 
reason  that  the  facts  therein  stated  do  not  in  law  constitute  a 
defense  in  favor  of  the  defendant  and  against  the  plaintiff's 
petition  or  the  several  causes  of  action  therein  contained. 

R.  X., 
Attorney  for  Plaintiff. 


No.  95. 

Plea  Not  Guilty  in  Trespass  by  Cutting  Timber. 

[Caption.] 

And  the  defendants,  for  plea,  say  they  are  not  guilty  of  cut- 
ting and  removing  the  timber  from  lands  of  plaintiffs,  as  in 
the  declaration  alleged.  R.  Y., 

Attorney  for  Defendants. 


No.  96. 

Plea  Not  Guilty  in  Ejectment. 

[Caption.] 

The  defendants.  C.  D.  and  E.  F.,  come,  and  for  plea  say 
they  are  not  guilty  of  wrongfully  withholding  the  premises 
from  the  plaintiffs  claimed  in  the  declaration. 

R.  Y., 
Attorney  for  Defendants. 


186  SUITS    AT    LAW. 

No.  97. 

Plea,  General  Issue  and  Contributory  Negligence. 

[Caption.] 

The  defendant  for  plea  to  the  several  counts  of  the  declara- 
tion says  it  is  not  guilty  of  the  wrongs  and  injuries  complained 
of  in  plaintiff's  several  counts  of  his  declaration,  and  avers 
that  plaintiff  is  not  entitled  to  a  recov^ery. 

And  for  further  plea  to  the  several  counts  of  the  declaration 
says  the  injury  complained  of  was  the  result  of  A.  B.'s  own 
negligence,  whereby  his  negligence  being  the  contributory 
cause  of  the  injury,  defendant  is  not  liable. 

R.  Y., 
Attorney  for  Defendant. 


No.  98. 

(Another  form.) 
Answer  in  Action  for  Tort,  Alleging  Negligence  of  Plaintiff. 

[Caption.] 

And  now  comes  the  defendant  in  the  above-entitled  action 
and  for  answer  denies  each  and  every  material  allegation  in 
the  plaintiff's  writ  and  declaration  contained,  and  further  an- 
swering the  defendant  says  the  plaintiff  is  not  entitled  to  main- 
tain this  action  for  the  reason  that  at  the  time  or  times  men- 
tioned in  said  declaration  the  plaintiff  was  not  in  the  exercise 
of  due  care.  By  its  Attorney, 

X.  Y. 


No.  99. 

Plea,  Raising  General  Issue. 

[Caption.] 

Now  comes  the  defendant.  The  Chicago,   Rock  Island  & 
Pacific  Railway  Company,  by  M.  L.  Bell  and  A.  B.  Enoch,  its 


PLEADINGS    BY    THE    DEFENANT,    ETC.  187 

attorneys,  and  defends  tiie  wrong  and  injury  when,  etc.,  and 
as  to  said  declaration  says  that  it  is  not  guilty  of  the  said  sup- 
posed grievances  above  laid  to  its  charge  nor  any  nor  either  of 
them,  and  further  says  that  it  does  not  owe  the  said  sum  of 
money  demanded  or  any  part  thereof,  in  manner  and  form  as 
the  plaintiff  has  above  thereof  complained  against  it.  And 
of  this  the  defendant  puts  itself  upon  the  country. 

M.  L.  B.  and 
A.  B.   E., 
Attorneys  for  Defendant. 


No.  100. 

Defendant's  Plea  and  Brief  Statement  in  Action  for  Assess- 
ment on  Shares. 
[Caption.] 

And  now  the  defendant  comes,  etc.,  when,  etc.,  and  says  it 
never  promised  the  plaintiff  in  the  manner  and  form  it  has 
declared  against  it,  and  for  this  puts  itself  upon  the  country. 

By  its  Attorneys, 
J.  S.  H.  Frink. 
C.  J.  Hamblett. 

The  plaintiff  wnll  take  notice  that  the  defendant  makes  the 
following  brief  statement  of  its  defence : 

(1)  It  denies  the  said  plaintiff  corporation  was  ever  duly 
organized,  or  that  all  the  shares  necessary  to  enable  said  cor- 
poration to  duly  and  legally  organize  have  ever  been  subscribed 
for  or  taken. 

(2)  It  denies  that  James  Lewis  Lombard  was  ever  the  bona 
fide  owmer  and  holder  of  the  stock  it  is  alleged  in  plaintiff's 
declaration  w^as  sold,  assigned,  transferred  and  delivered  to 
said  defendant,  or  that  defendant  ever  accepted  the  assignment 
of  the  same. 

(3)  It  says  that  said  James  Lewis  Lombard  conspired  with 
the  plaintiff  company  to  make  sale  to  said  defendant  of  said 


188  SUITS    AT    LAW. 

shares,  through  false  and  fraurkilent  representations,  and  that 
the  sale  and  acceptance  to  said  defendant  in  plaintiff's  declara- 
tion alleged  was  procured  by  the  fraudulent  and  false  repre- 
sentations of  said  James  Lewis  Lombard,  acting  for  and  in 
behalf  of  the  plaintiff  company. 

(4)  It  says  that  said  James  Lewis  Lombard,  conspiring  with 
the  plaintiff  company,  and  with  full  knowledge  on  the  part  of 
the  plaintiff,  sold  said  stock  to  the  said  defendant  upon  the  false 
and  fraudulent  representation  and  promise,  that  there  never 
should  be  a  call  for  more  than  two  pounds  sterling  per  share 
on  the  subscription  to  said  stock,  and  the  call  and  assessment 
in  the  suit  is  in  excess  of  said  sum. 

(5)  It  says  that  said  James  Lewis  Lombard,  with  the  full 
knowledge  and  authority  on  the  part  of  the  plaintiff  to  make 
the  representations  hereinafter  recited,  in  order  to  induce  said 
defendant  to  purchase  said  shares,  represented  to  it  that  the 
capital  stock  of  said  company  was  placed  at  ten  pounds  sterling 
per  share,  because  it  was  the  English  method  of  doing  business, 
and  that  it  was  necessary  to  do  so  to  comply  with  the  English 
law  or  custom  in  such  cases,  in  order  to  absorb  the  surplus, 
which  he  represented  would  accumulate  from  the  profits  of  the 
business  of  said  corporation,  and  to  enable  the  company  to  in- 
crease its  capital  stock  if  desirable,  by  making  dividends  from 
its  surplus,  and  that  said  representations  were  false  and  fraud- 
ulent, and  the  said  defendant  in  making  said  purchase  relied 
upon  the  same. 

(6)  It  says  that  defendant  was  induced  to  purchase  said 
stock,  relying  upon  the  promise  of  said  James  Lewis  Lombard, 
with  the  full  knowledge  and  assent  of  the  plaintiff  company, 
that  the  American  stockholders  should  be  represented  in  the 
board  of  officers  of  said  company  and  have  a  voice  in  the  man- 
agement of  its  affairs,  but  the  plaintiff  corporation  has  refused 
and  neglected  to  choose  any  such  officers,  and  did  not  so  intend 
at  the  time  of  such  representations,  with  a  view  of  making  the 
fraudulent  call  and  assessment  in  plaintiff's  declaration  alleged. 


PLEADINGS   BY    THE   DEFENANT,    ETC.  189 

(7)  It  says  that  the  plaintiff  corporation  has  purposely  and 
with  a  view  to  making  unlawful  assessments  and  calls,  inten- 
tionally debarred  the  American  stockholders  from  attending 
any  meeting  of  said  company,  by  neglecting  to  give  the  Ameri- 
can subscribers  to  stock  in  said  company,  including  the  defend- 
ant, seasonable  notice  of  the  meetings  of  said  company,  at 
which  said  alleged  assessments  were  voted,  so  that  it  would  be 
possible  for  them  to  attend  said  meetings,  and  they  did  not 
attend  said  meetings  for  want  of  such  seasonable  notice,  and 
the  defendant  will  claim  that  the  assessments  are  invalid,  for 
this  and  other  causes. 

(8)  It  says  the  assessment  declared  upon  was  not  a  legal 
assessment  against  the  stockholders  in  said  company,  because 
no  notice  to  the  stockholders  was  ever  given  of  a  meeting  to 
consider  the  subject  of  making  an  assessment  upon  said  stock, 
so  as  to  render  it  possible  for  the  stockholders  to  be  present  or 
to  be  represented  at  such  meeting. 

(9)  It  says  the  assessments  attempted  to  be  collected  in  this 
suit  are  invalid,  unlawful  and  unauthorized. 

(10)  It  says  that  no  assessment  whatever  was  made,  or  is 
alleged  to  have  been  made,  upon  the  stock  alleged  to  have  been 
sold,  assigned,  transferred  and  delivered  to  the  defendant  by 
said  James  Lewis  Lombard,  since  said  alleged  sale,  assigpi- 
ment,  transference  and  delivery, 

(11)  It  says  that  defendant  never  subscribed  for  any  of  the 
stock  of  said  plaintiff  corporation,  nor  was  it  at  the  time  of 
said  alleged  assessment  nor  has  it  ever  been  the  owner  of  any 
such  stock. 


No.  101. 

Plea  of  Defendant  in  Action  for  Violation  of  Federal  Em- 
ployer's Liability  Act. 

[Caption.] 

The  defendant  says  that  it  is  not  guilty  in  manner  and  form 
as  the  plaintiff  has  alleged  and  makes  the  following  brief  state- 
ment of  defence  under  the  foregoing  issue: 


190  SUITS   AT    LAW. 

1.  The  injury  of  which  the  plaintiff  complains  was  not  caused 
by  the  negligence  of  the  defendant  or  of  any  of  its  officers, 
agents  or  servants. 

2.  The  situation  and  all  the  conditions  in  any  way  related 
to  the  accident  were  open  and  obvious  and  whatever  risks  the 
plaintiff's  intestate  was  subjected  to  were  assumed  by  him. 

The  defendant  further  says  that  the  plaintiff  was  guilty  of 
contributory  negligence. 

By  its  Attorneys, 
A.  B.  and  C.  D. 


No.  102. 

Plea  of  General  Issue  to  Additional  Counts. 

[Caption.] 

Now  comes  the  defendant,  Chicago,  Milwaukee  &  St.  Paul 
Railway  Company,  by  O.  W.  Dynes  and  C.  S.  Jefferson,  its 
attorneys,  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  it  is  not  guilty  of  the  said  several  supposed  griev- 
ances above  laid  to  its  charge,  or  any  or  either  of  them,  or  any 
part  thereof,  in  manner  and  form  as  the  plaintiff  has  above 
thereof  in  his  said  additional  counts  complained  against  it. 
And  of  this  the  defendant  puts  itself  upon  the  country,  etc. 

A.  B.  and  C.  D., 
Attorneys  for  Defendant. 


No.  103. 

Allegation  of  Negligence  and  Assumed  Risk. 

6.  Further  answering  the  complaint  alleges  upon  informa- 
tion and  belief  that  any  injuries  sustained  by  the  plaintiff  at 
the  time  and  place  mentioned  and  described  in  the  complaint 
were  caused  by  his  own  carelessness  and  negligence  and  in  no 


PLEADINGS   BY    THE   DEFENANT,    ETC.  191 

wise  by  negligence  on  the  part  of  this  defendant.  That  all  the 
risks  and  dangers  connected  with  the  situation  at  the  time  and 
place  mentioned  in  the  complaint  were  open,  obvious  and  appar- 
ent and  were  known  to  and  assumed  by  the  plaintiff  herein. 


No.  104. 

Defense  of  Another  Action  Pending. 

The  defendant  realleges  the  allegations  contained  in  para- 
graphs tenth,  eleventh,  twelfth  and  thirteenth  of  this  answer, 
and  in  addition  thereto  alleges  at  the  time  of  the  commence- 
ment of  this  action  there  was  and  is  now  pending  in  the  su- 
preme court  of  the  state  of  New  York  an  action  brought  by 
this  plaintiff  against  this  defendant  in  the  month  of  July,  1907, 
upon  the  same  cause  of  action  alleged  in  the  complaint  herein, 
■which  action  at  the  time  of  the  commencement  of  this  action 
was  and  is  now  at  issue  between  the  parties  hereto. 


No.  105. 

Defense  to  Counterclaim,  of  Another  Action  Pending. 

For  a  separate  and  distinct  defense  to  the  said  counterclaim, 
this  plaintiff  alleges: 

That  there  is  another  action  pending  between  the  same  par- 
ties and  for  the  same  cause. 

Wherefore,  this  plaintiff  demands  judgment  as  prayed  for 
in  the  complaint  herein. 


No.  106. 

Counterclaim  in  Suit  for  Breach  of  Contract  of  Sale. 

Further  answering  the  complaint,  and  for  a  defense  to  the 
whole  thereof,  and  as  a  counterclaim  to  the  causes  of  action 


192  SUITS   AT   LAW. 

therein  alleged,  the  defendant  alleges  upon  information  and 
belief  as  follows : 

VIII.  The  defendant  was  at  all  the  times  hereinafter  men- 
tioned, now  is  and  for  many  years  last  past  has  been,  a  corpora- 
tion duly  organized  and  existing  under  the  laws  of  the  state  of 
California,  with  its  principal  place  of  business  in  San  Fran- 
cisco, in  the  said  state,  and  is  a  resident  and  a  citizen  of  the 
state  of  California. 

IX.  The  plaintiff  was  at  all  the  times  hereinafter  mentioned 
and  now  is  a  citizen  and  resident  of  the  state  of  New  York, 
residing  at  No.  940  East  173d  street,  in  the  borough  of  the 
Bronx,  and  is  a  resident  and  inhabitant  of  the  Southern  Dis- 
trict of  New  York,  and  is  engaged  in  the  manufacture  of  yarns 
and  threads  at  147  Spring  street,  borough  of  Manhattan,  city 
of  New  York,  doing  business  under  the  name  and  style  of  "The 
Globe  Thread  Co." 

X.  In  or  about  the  month  of  February,  1916,  the  defendant 
and  the  plaintiff  entered  into  an  agreement  in  writing,  whereby 
it  was  mutually  agreed  that  the  plaintiff  should  sell  and  deliver 
to  the  defendant  in  ten  monthly  shipments,  beginning  on  or 
about  March  1,  1916.  and  that  the  defendant  would  accept  and 
pay  for,  ten  thousand  tubes  of  thread  made-of  combed  Egyptian 
yarn,  half  silk  finish  and  half  soft  finish,  at  sundry  prices, 
amounting  in  the  aggregate  to  the  sum  of  about  $11,315,  all 
of  the  said  thread  to  be  of  the  same  color,  strength,  quality  and 
finish  as  certain  thread  constituting  a  sample  previously  deliv- 
ered by  the  plaintiff  to  the  defendant ;  and  the  plaintiff  further 
represented  and  declared  that  he  had  on  hand  dye  of  a  quality 
equal  to  that  used  in  the  said  sample,  and  the  defendant  entered 
into  the  said  agreement  relying  on  the  said  representation ;  and 
the  plaintiff  warranted  and  agreed  to  and  with  the  defendant 
that  all  of  the  said  thread  should  be  of  the  color,  strength, 
quality  and  finish  as  the  sample  on  the  faith  of  which  the  agree- 
ment was  entered  into,  and  further  warranted  and  agreed  that 
the  said  thread  should  be  free  from  all  defects  and  of  good 
and  merchantable  quality. 


PLEADINGS  BY  THE  DEFENANT,  ETG.  193 

XI.  The  plaintiff  wholly  failed  to  perform  the  said  contract 
with  the  defendant,  did  not  have  on  hand  dye  of  a  quality  equaj 
to  that  used  in  the  said  sample,  failed  to  tender  deliveries  of 
any  thread  at  the  time  stipulated  in  the  said  agreemem,  and  has 
wholly  failed  and  refused  to  deliver  any  thread  of  the  color, 
strength,  quality  or  finish  called  for  by  said  coivtract,  but  at 
divers  times  the  plaintiff  tendered  to  the  defendant  various 
shipments  of  tubes  of  thread  that  were  noi  m  accordance  with 
the  said  contract,  and  not  of  the  same  iolor,  strength,  quality 
or  finish  as  the  said  sample  thread,  but  of  a  different  color  and 
finish,  and  all  of  inferior  strength  and  quality,  and  not  free 
from  defects  and  not  of  a  good  merchantable  quality.  The 
defendant  rejected  all  of  the  said  shipments  and  duly  notified 
the  plaintiff  of  the  rejection  of  each  and  all  of  the  said  ship- 
ments and  demanded  of  the  plaintiff  that  he  make  deliveries  in 
accordance  with  his  agreement,  which  the  plaintiff  wholly 
failed  and  refused  to  do;  although  the  defendant  was  at  all 
times  ready  and  willing  at  the  times  and  place  appointed  in  the 
said  agreement,  to  receive  the  said  thread  and  to  pay  for  the 
same,  and  has  otherwise  duly  performed  all  the  conditions  on 
its  part  to  be  performed,  the  plaintiff  has  wholly  failed  to  per- 
form the  said  agreement,  has  failed  and  neglected  to  deliver 
or  to  tender  delivery  of  the  said  thread,  or  any  part  thereof, 
in  accordance  with  the  said  agreement,  but  has  broken  and 
terminated  the  said  contract. 

XII.  The  defendant  has  incurred  expenses  in  and  about  the 
transport  of  the  said  shipments  from  the  city  of  New  York, 
where  the  same  were  delivered,  to  the  city  of  San  Francisco, 
where  the  same  were  inspected,  and  in  and  about  the  return 
thereof  to  the  city  of  New  York,  in  the  sum  of  $265.74. 

XIII.  By  reason  of  the  premises,  the  defendant  has  been 
damaged  in  the  sum  of  $10,265.74. 

Wherefore,  the  defendant  demands  judgment  that  the  relie'i 
demanded  by  the  plaintiff  be  denied,  and  that  the  defendant 


194  SUITS    AT    LAW. 

have  judgment  against  the  plaintiff  in  the  sum  of  $10,265.74, 
together  with  the  costs  and  disbursements  of  this  action. 

A.  B.  and  C.  D., 
Attorneys  for  Defendant. 


No.  107. 

Defense  of  Breach  of  Contract. 

For  a  further  and  separate  and  as  a  partial  defense  to  the 
alleged  cause  of  action  set  forth  in  the  complaint,  this  defend- 
ant alleges  upon  information  and  belief: 

First:  That  in  and  by  the  policy  issued  by  it  to  the  plaintiff 
on  or  about  the  6th  day  of  February,  1914,  bearing  No.  178,- 
716,  which  policy  is  referred  to  and  described  in  the  complaint 
and  in  the  alleged  cause  of  action  therein  set  forth,  and  on 
which  policy  the  said  alleged  cause  of  action  is  based,  it  was 
provided  that  it  shall  be  optional  with  this  defendant  to  repair, 
rebuild  or  replace  the  property  lost,  or  damaged,  with  other  of 
like  kind  and  quality  within  a  reasonable  time  on  giving  notice 
within  thirty  days  after  the  receipt  of  a  proof  of  loss  of  its 
intention  so  to  do. 

Second:  Upon  information  and  belief  that  within  thirty 
days  after  the  receipt  by  this  defendant  from  the  plaintiff  of 
papers  purporting  to  be  a  proof  of  loss,  and  prior  to  the  com- 
mencement of  this  action,  this  defendant  notified  the  plaintiff 
that  it  desired  and  was  ready  to  promptly  replace  the  property 
alleged  in  the  cause  of  action  in  the  complaint  to  have  been 
lost,  destroyed  or  damaged  with  other  property  of  like  kind, 
and  quality,  and  this  defendant  offered  so  to  do  both  orally 
and  in  writing. 

Third:  That  plaintiff  refused  to  permit  this  defendant  to 
replace  such  property  with  other  of  like  kind  and  quality. 

Fourth:  That  the  plaintiff  has  wholly  failed,  with  regard  to 
the  fire  alleged  in  the  cause  of  action,  set  forth  in  the  com- 
plaint, to  comply  with  the  terms  and  conditions  of  the  policy 


PLEADINGS   BY   THE   DEFENANT,   ETC.  195 

described  in  said  alleged  cause  of  action  on  its  part  to  be  per- 
formed. 

Wherefore  the  defendant  demands  judgment  that  the  com- 
plaint of  the  plaintiff  be  dismissed  with  costs. 

A.  B., 
Attorney  for  Defendant. 
[Verification.} 


No.  108. 

Defense  of  Tender. 

For  a  separate  and  distinct  defense  to  the  alleged  cause  of 
action  set  forth  in  the  complaint,  this  defendant  alleges  as  fol- 
lows, upon  information  and  belief: 

Ninth:  That  before  the  commencement  of  this  action  and 
on  the  11th  day  of  June,  1909,  at  the  city  of  New  York,  this 
defendant  tendered  to  the  plaintiff  the  sum  of  one  thousand 
two  hundred  ninety-nine  and  44/100  dollars  ($1,299.44),  with 
interest  from  February  4,  1909,  to  June  11,  1909,  in  payment 
and  full  settlement  of  the  obligation  of  the  defendants  to  the 
plaintiff  under  the  agreement  annexed  to  the  complaint  herein 
marked  Exhibit  "A,"  but  the  plaintiff  refused  to  receive  the 
same. 

Tenth:  That  this  defendant  has  ever  since  remained  and 
still  is  ready  and  willing  to  pay  to  the  plaintiff  said  sum  and 
said  interest  in  full  pa)mient  and  settlement  of  the  obligation 
of  the  defendants  to  the  plaintiff  on  the  account  of  the  afore- 
said agreement,  but  the  plaintiff  has  hitherto  refused  to  receive 
the  same. 

Wherefore,  this  defendant  demands  judgment  dismissing 
the  complaint  of  the  plaintiff  and  for  the  costs  and  disburse* 
ments  of  this  action. 

A.  B., 
Attorney  for  Defendant 


196 


SUITS    AT    LAW. 


No.  109. 

Defense  of  Res  Adjudicata. 

That  on  or  about  March  10,  1904.  this  plaintiff  commenced 
an  action  in  the  supreme  court  of  the  state  of  New  York,  for 
the  county  of  New  York,  against  this  defendant  to  recover 
from  him  the  sum  of  $7,200,  the  amount  of  his  alleged  liability 
under  the  constitution  and  general  laws  of  Minnesota  as  a 
stockholder  or  beneficial  owner  of  stock  of  the  Minnesota 
Thresher  Manufacturing  Company  for  the  same  indebtedness 
of  said  company  which  is  alleged  in  the  complaint  in  this  ac- 
tion, and  that  the  liability  of  the  defendant  asserted  in  the  said 
action  is  the  same  liability  asserted  by  the  plaintiff  in  this  action, 
except  only  that  the  said  action  was  brought  to  recover  from 
the  defendant  the  assessment  of  $18  per  share  assessed  by  an 
order  of  the  district  court  for  the  county  of  Washington,  state 
of  Minnesota,  dated  December  22,  1902,  and  referred  to  and 
more  fully  described  in  paragraphs  "16"  and  "17"  of  the  com- 
plaint herein,  against  every  person  liable  as  a  stockholder  of 
said  Thresher  Company,  while  the  present  action  while  based 
upon  the  same  alleged  liability  of  the  defendant  as  a  stock- 
holder or  beneficial  owner  of  stock  of  the  said  Thresher  Com- 
pany, and  upon  the  same  proceedings  of  the  courts  of  Minne- 
sota referred  to  in  the  first  twenty  paragraphs  of  the  complaint 
herein,  is  brought  to  recover  an  assessment  of  $32  per  share 
assessed  against  every  person  liable  as  a  stockholder  of  the  said 
Thresher  Company  by  an  order  of  the  said  court  dated  June  11, 
1907,  and  referred  to  and  more  fully  described  in  paragraphs 
"22"  and  "23"  of  the  complaint  herein.  That  the  said  action 
was  thereafter  duly  tried  upon  the  merits  and  that  a  judgment 
was  on  January  7,  1905,  duly  entered  therein  in  favor  of  this 
plaintiff  and  against  this  defendant.  That  this  defendant  duly 
appealed  from  the  said  judgment  to  the  appellate  division  of 
the  supreme  court  of  the  state  of  New  York,  which  court  re- 
versed the  said  judgment  and  ordered  a  new  trial  of  the  said 


PLEADINGS    BY    THE   DEFENANT,    ETC.  197 

action,  and  a  judgment  of  the  supreme  court  of  the  state  of 
New  York  was  thereupon  duly  entered  reversing  the  said  judg- 
ment and  ordering  a  new  trial  of  the  said  action.  That  such 
new  trial  was  thereupon  duly  had  upon  the  merits  and  pro- 
posed findings  of  fact  and  conclusions  of  law  were  duly  sub- 
mitted thereon  on  behalf  of  both  the  plaintiff  and  defendant 
and  that  a  judgment  was  on  August  29,  1906.  duly  entered 
therein  upon  the  merits  in  favor  of  this  defendant  and  dismiss- 
ing the  complaint  in  said  action.  That  the  plaintiff  thereafter 
appealed  to  the  appellate  division  of  the  supreme  court  of  the 
state  of  New  York  from  said  judgment,  which  court  duly 
affirmed  the  said  judgment;  that  the  plaintiff  thereafter  ap- 
pealed to  the  court  of  appeals  of  the  state  of  New  York  from 
the  judgment  affirmed  by  the  appellate  division  of  the  supreme 
court  of  the  state  of  New  York  in  favor  of  this  defendant  and 
that  the  said  court  of  appeals  duly  affirmed  the  said  judgment; 
that  the  said  plaintiff  thereafter  sued  out  a  writ  of  error  to  the 
supreme  court  of  the  United  States  from  the  judgment  entered 
upon  the  order  of  the  said  court  of  appeals  affirming  the  said 
judgment  and  that  the  supreme  court  of  the  United  States 
thereafter  dismissed  said  writ  of  error,  and  a  judgment  of  the 
supreme  court  of  the  state  of  New  York  was  thereafter  and  on 
the  17th  day  of  January,  1911,  duly  made  and  entered  affirm- 
ing the  judgment  appealed  from.  That  in  and  by  said  judg- 
ments and  proceedings  of  the  supreme  court  and  court  of  ap- 
peals of  the  state  of  New  York,  it  was  finally  adjudged  and 
decreed  upon  the  merits  as  appears  from  the  judgment  roll  in 
the  said  action  that  the  defendant  was  not  a  stockholder  of  the 
Minnesota  Thresher  Manufacturing  Company  at  the  time  of 
the  entry  of  the  judgments,  orders  or  decrees  of  the  district 
court  of  Washington  county,  Minnesota,  on  August  16,  1901, 
and  December  22,  1902,  respectively,  described  in  the  com- 
plaint herein,  and  that  the  defendant  was  not,  therefore,  sub- 
ject to  any  liability  for  the  debts  of  that  corporation  under  the 
constitution  or  laws  of  Minnesota.      That  hereto  attached 


198  SUITS    AT    LAW. 

marked  "A"  and  made  a  part  hereof  is  a  true  copy  of  the 
minutes  of  the  decision  of  the  court  of  appeals  in  the  said 
action. 

That  the  said  judg-ments  and  proceedings  other  than  the 
judgment  of  January  7,  1906,  are  still  in  full  force  and  un- 
reversed and  are  res  adjudicatae  and  conclusive  upon  the  par- 
ties to  this  action  as  to  liability  of  this  defendant  asserted  in 
the  complaint  herein  as  a  stockholder  or  as  the  beneficial  owner 
or  holder  of  stock  of  the  Minnesota  Thresher  Manufacturing 
Company.  , 

Upon  information  and  belief  that  the  cause  of  action  alleged 
in  the  complaint  in  this  action  is  the  same  cause  of  action 
alleged  in  the  action  referred  to  in  paragraph  twelfth  of  this 
answer  and  that  the  judgment  of  August  29,  1906,  in  the  said 
action  is  res  adjudicata  as  to  the  cause  of  action  alleged  in  the 
complaint  in  this  action. 

That  under  the  provisions  of  Article  4,  Section  1,  of  the 
Constitution  of  the  United  States,  full  faith  and  credit  must  be 
given  by  this  court  to  the  said  judgments  and  judicial  proceed- 
ings of  the  supreme  court  of  the  state  of  New  York  and  of  the 
court  of  appeals  of  that  state. 


No.  110. 

Pleading  Equitable  Defense  in  Action  at  Law  (1). 

And  for  a  fifth,  further  and  affirmative  defense,  without 
waiver  of  any  of  the  defenses  hereinbefore  interposed,  de- 
fendant alleges: 

That  the  plaintiff,  on  or  about  the  5th  day  of  March,  1915, 
for  a  good,  valuable  and  sufficient  consideration,  compromised, 
adjusted  and  made  a  full  settlement  of  his  claim,  if  any,  against 
defendant  on  account  of  the  accident,  if  any  occurred,  of 
which  plaintiff  complains  in  said  complaint,  and  then  and 
there,  for  a  good,  valuable  and  sufficient  consideration  paid  to 


PLEADINGS  BY   THE  DEFENANT,   ETC.  l99 

him  by  defendant,  made,  executed  and  delivered  to  defendant 
his  written  release,  in  full  settlement  and  discharge  of  all  claims, 
demands  or  causes  of  action  whatsoever  which  he  then  had 
or  might  thereafter  have  against  defendant  on  account  of  the 
accident,  if  any  occurred  described  in  said  complaint;  that 
plaintiff  thereby  then  and  there  released  and  forever  dis- 
charged defendant  of  all  claims,  demands  and  causes  of  action 
whatsoever  which  plaintiff  then  had  or  which  he  might  there- 
after have  against  defendant  on  account  of  the  accident,  which 
occurred  to  the  plaintiff  on  October  28,  1914,  as  alleged  in 
said  complaint ;  that  by  virtue  thereof  plaintiff's  right  of  action 
against  defendant,  if  any  he  had,  and  defendant's  liability 
for  said  accident,  if  any  existed,  were  extinguished ;  that  said 
written  release,  made,  executed  and  delivered  to  defendant 
by  plaintiff  on  March  5,  1915,  as  aforesaid,  was  and  is  in 
words  and  figures  as  follows,  to-wit: 

"Union  Pacific  Railroad  Company.    Voucher  No. , 


"Draft  No.  714  EDW. 

"Release  of  All  Claims. 

"Received  of  Union  Pacific  Railroad  Company  seven  hun- 
dred fifty  dollars  ($750.00)  in  full  settlement  and  complete 
satisfaction  of  all  claims  and  causes  of  action  against  it  grow- 
ing out  of  any  matter  whatsoever,  and  particularly  in  full 
settlement  and  complete  satisfaction  of  all  claims  or  causes 
of  action,  that  exist  or  may  hereafter  accrue,  against  it  or  any 
other  company,  partnership  or  person,  for  damages  for  any 
and  all  personal  injuries  or  loss  or  damage  to  property,  sus- 
tained in  or  growing  out  of  a  certain  accident,  or  for  com- 
plications arising  from  such  injuries,  or  treatment  for  such 
injuries.  Said  accident  occurred  on  the  twenty-eighth  (28th) 
day  of  October,  1914,  at  or  near  Denver,  Colorado,  and  con- 
sisted in  injuries  received  while  employed  as  boilermaker 
helper. 


200  SUITS    AT    LAW. 

"In  consideration  thereof,  I  release  Union  Pacific  Railroad 
Company  from  all  claims  or  causes  of  action  growing  out  of 
any  matter  whatsoever,  and  I  particularly  release  said  com- 
pany and  all  other  companies,  partnerships  and  persons  from 
all  claims  or  causes  of  action,  that  exist  or  may  hereafter 
accrue,  for  damages  for  any  and  all  personal  injuries  or  loss 
or  damage  to  property,  sustained  in  or  growing  out  of  the 
said  accident,  or  for  complications  arising  from  such  injuries, 
or  treatment  for  such  injuries. 

"The  above  amount  is  the  full  consideration  for  this  settle- 
ment, and  no  promise  or  contract  of  future  employment  has 
been  made. 

"I  have  read  the  foregoing  receipt  and  release  and  fully 
understand  the  same. 

"Dated,  Denver,  Colo.,  March  5,  1915. 
"Witnesses : 

"Mrs.  Katie  Hoffman, 
"C.  R.  I.ucas. 

"(Signed)     James  Syas." 

(1)  The  Judicial  Code,  Sec.  274b,  provides  for  such  defense.  35 
Stat.  L  956. 

There  was  no  such  right  prior  to  this  statute.  Whitcomb  v. 
Shultz,  223  Fed.  268,  138  C  Z.  A.  510,  and  see  note  to  Standard,  etc., 
Co.  V.  Evans,  125  C.  C.  A.  1. 

This  statute  abolishes  the  technical  distinctions  between  actions 
at  law  and  in  ea,uitv.  U.  S.  v.  Richardson,  223  Fed.  1010,  139  C.  C. 
A.  386. 

Answer  in  a  suit  in  assumpsit  for  price  of  an  adding  machine 
may  set  up  fraudulent  representations  of  the  plaintiff.  Burroughs, 
etc.;  Co.  v.  Bank,  239  Fed.  179. 

In  a  suit  against  the  executors  of  a  will  to  recover  a  legacy  the 
executors  may  set  up  a  release  as  a  legal  defense,  but  plaintiff  may 
not  set  up  an  equitable  defense  thereto  in  the  replication,  for  Judicial 
Code,  Sec.  274b,  although  permitting  an  equitable  defense  in  the 
answer  or  plea,  permits  such  defense  in  the  replication  only  when  the 
answer  or  plea  interposes  an  equitable  defense  upon  which  affirma- 
tive relief  is  prayed,  as  a  counterclaim,  but  Hand,  district  judge, 
regarded  that  construction  too  narrow  and  dissented.  Keatley  v. 
U.  S.  Tr.  Co.,  249  Fed.  296,  161  C.  C.  A.  304. 


PLEADINGS  BY  DEFENDANT,   ETC.  201 

When  equitable  relief  is  asked  in  an  action  at  law,  the  case  for 
equitable  relief  should  be  tried  as  a  case  in  equity  and  first  disposed 
of  before  proceeding  in  the  action  at  law;  it  is  error  to  send  to  the 
same  jury  the  question  of  fraud  in  a  release  pleaded  as  an  equitable 
defense  and  the  question  of  damages  if  the  release  is  found  by  the 
jury  to  be  fraudulent.  U.  P.  Ry.  Co.  v.  Syas,  246  Fed.  561,  158  C.  C. 
A.  531;  Fay  v.  Hill,  249  Fed.  415. 

This  section  applies  only  between  the  original  parties  to  the  suit, 
and  IS  therefore  not  a  bar  to  an  ancillary  action  in  the  nature  of  aa 
interpleader  brought  by  the  same  defendant  where  other  parties  are 
necessary  to  the  determination  of  the  interpleader.  Sherman,  etc.. 
Bank  v.  Shubert  Theatrical  Co.,  247  Fed.  256.  159  C.  C.  A.  350. 

This  section  covers  also  a  case  in  which  the  defense  calls  for 
affirmative  relief  as  well  as  for  a  judgment  that  the  plaintiff  "take 
nothing."'     United  Timber  Corp.  v.  Bivens,  248  Fed.  554,  562. 

Under  this  section  it  is  proper  in  an  action  on  a  contract  to  ask 
in  the  answer  for  reformation  thereof,  and  the  court  will  consider  this 
cross-petition  first  as  an  equity  proceeding,  and  after  decree  thereon, 
take  up  the  trial  of  the  action  at  law  for  breach.  Upson  Nut  Co.  v. 
American  Shipbuilding  Co.,  251   Fed.  707. 


No.  111. 

Plea  of  General  Issue  with  Notice  of  Set-OfF. 

[Caption.] 

The  defendant  comes  and  demands  a  trial  of  the  matters  set 
forth  in  the  plaintiff's  declaration.  R.  Y., 

Attorney  for  Defendant. 
To  G.  P., 
Attorney  for  the  Plaintiff: 

Please  take  notice  that  the  defendant  will  in  like  manner 
insist  upon  and  give  in  evidence  under  the  general  issue  above 
pleaded  that  before  and  at  the  time  of  the  commencement  of 
this  suit,  the  plaintiff  was  and  still  is  indebted  to  the  defend- 
ant in  the  sum  of  twenty-five  thousand  dollars,  for  the  price 
and  value  of  goods  then  sold  and  delivered  by  the  defendant 
to  the  plaintiff  at  its  request.  And  in  like  sum  for  the  price 
and  value  of  work  then  done,  and  materials  for  the  same  pro- 
vided, by  the  defendant  for  the  plaintiff,  at  its  request.  And 
in  like  sum  for  the  price  and  value  of  work  then  done  by 
the  defendant  for  the  plaintiff,  at  its  request.     And  in  a  like 


202  SUITS    AT    LAW. 

SUM  for  money  then  lent  by  the  defendant,  to  the  plaintiff, 
at  its  request.  And  in  a  like  sum  for  money  then  paid  by  the 
defendant  for  the  use  of  the  plaintiff,  at  its  request.  And  in  a 
like  sum  for  money  then  received  by  the  plaintiff  for  the  use 
of  the  defendant.  And  in  a  like  sum  for  money  found  to  be 
due  from  the  plaintiff  to  the  defendant  on  an  account  stated 
between  them.  Which  said  several  sums  of  money,  or  so 
much  thereof  as  will  be  sufficient  for  that  purpose,  the  defend- 
ant will  set  off  and  allow  against  any  demand  of  the  plaintiff 
to  be  proved  on  said  trial,  and  will  take  judgment  against  the 
plaintiff  for  the  amount  of  the  balance,  if  any,  found  upon 
such  trial,  to  be  due  from  the  plaintiff  to  the  defendant. 

R.  Y., 
Attorney  for  Defendant. 
Dated  this day  of ,  A.  D. . 


No.  112. 

Pleas  to  a  Declaration  by  an  Engineer  for  Damages  for  Per- 
sonal Injury. 
[Caption.'\ 

First.  The  defendant  for  plea  to  the  declaration  and  the 
four  counts  of  the  same  says  it  is  not  and  was  not  guilty  of 
the  wrongs  and  injuries  as  plaintiff  both  alleged. 

R.  Y., 
Attorney  for  Defendant. 

Second.  And  for  further  plea  to  the  first  count  of  the  dec- 
laration says,  if  the  injury  resulted  from  the  negligence  of 
the  conductor,  as  plaintiff  has  alleged,  then  the  defendant  is 
not  liable,  as  the  said  conductor  and  engineer  were  fellow 
servants.  R.  Y.,  Attorney. 

Third.  And  the  defendant  for  further  plea  to  the  second 
count  of  the  declaration  says,  if  the  injury  resulted  from  the 
negligence  of  the  telegraph  operator  at  Jackson  and  Milan, 


PLEADINGS  BY   DEFENDANT,    ETC.  203 

or  either,  as  plaintiff  has  alleged,  it  is  not  responsible  as  it 
would  be  the  act  of  a  fellow  servant  of  the  deceased. 

R.  Y.,  Attorney. 

Fourth.  And  for  further  plea  to  the  third  count  of  the 
declaration  that  the  injury  resulted  from  the  negligence  of 
the  operator  or  agent  or  some  one  for  him  at  Milan,  it  states 
it  is  not  liable  because  it  would  be  the  negligence  of  a  fellow 
servant  of  the  deceased.  R.  Y.,  Attorney. 

Fifth.  And  further  plea  to  said  third -count  that  the  ac- 
cident resulted  from  the  negligence  of  some  one  at  Milan,  it  is 
not  responsible  for  the  acts  of  said  third  party. 

R.  Y.,  Attorney. 

Sixth.  And  for  further  plea  to  each  count  of  the  declara- 
tion it  says  if  the  accident  occurred  it  was  the  fault  of  a 
fellow  servant  of  said  engineer,  for  which  it  is  not  responsi- 
ble. R.  Y.,  Attorney. 

Seventh.  And  for  further  plea  to  each  count  of  the  decla- 
ration it  says  if  the  accident  occurred  it  was  by  the  negli- 
gence of  the  deceased  for  which  the  defendant  is  not  liable. 

R.  Y.,  Attorney. 

Eighth.  And  defendant  for  further  plea  to  each  and  every 
count  of  the  declaration  says  the  accident  or  injury  was  the 
result  of  the  deceased's  disobedience  of  the  rules  and  regula- 
tions of  the  defendant.  R.  Y.,  Attorney. 

Ninth.  And  for  further  plea  to  each  count  of  the  declara- 
tion it  says  it  is  not  liable ;  that  the  deceased  at  the  time  of  the 
accident  was  acting  in  direct  violation  of  the  rules  of  the  de- 
fendant which  he  knew  of.  R.  Y,,  Attorney. 

Tenth.  And  for  further  plea  says  the  accident  was  the  re- 
sult of  deceased  disobeying  the  rules  of  defendant. 

R.  Y.,  Attorney. 


204  SUITS    AT    LAW. 

No.  113. 

Plea  of  Statute  of  Limitations. 
ICaption.^ 

And  for  further  plea  in  this  behalf  said  defendant  says, 
plaintiff's  cause  of  action,  if  any  he  had,  accrued  more  than 
twelve  months  next  before  the  commencement  of  this  suit 
and  this  defendant  is  ready  to  verify.  R.  Y., 

Attorney  for  Defendant. 


No.  114. 

Pleas  to  a  Declaration  on  Policy  for  Accident  Insurance. 

[Caption.'\ 

First.  The  defendant,  the  Fidelity  and  Casualty  Com- 
pany of  New  York,  for  plea  says  that  it  owes  the  plaintiff 
nothing  as  in  his  declaration  he  hath  alleged. 

Second.  The  defendant  craves  oyer  of  the  policy  of  acci- 
dent insurance  in  the  declaration  mentioned  and  it  is  read 
to  it  in  these  words :     [Here  set  out  policy  in  haec  verba."] 

Third.  For  further  plea  defendant  says  that  the  statement 
made  in  said  application  for  said  policy  of  insurance  that  said 
intestate  was  then  in  sound  condition  mentally  and  physically 
was  false  and  untrue  in  that  the  said  intestate  had  a  few 
months  theretofore  received  a  severe  blow  on  the  head  which 
caused  his  brain  to  become  and  be  diseased,  and  in  conse- 
quence thereof  he  was  not  in  sound  condition  physically, 
and  at  the  time  of  the  making  of  said  statement.  Said  in- 
testate was  not  in  a  sound  mental  condition  and  by  reason 
of  the  falsity  of  said  statement  and  the  breach  of  said  war- 
ranty, the  policy  of  accident  insurance  mentioned  in  the  dec- 
laration was  avoided  from  the  beginning. 

Fourth.  Defendant  for  further  plea  says  that  plaintiff's 
intestate  committed  suicide  by,  on  ,  voluntarily,  wan- 
tonly and  with  the  intent  to  take  his  life,  jumping  from  a  train 
en  route  from to ,  moving  at  a  high  rate  of  speed. 


PLEADINGS  BY  DEFENDANT^   ETC.  205 

he  being  a  passenger  on  said  train;  that  said  intestate  inten- 
tionally and  of  a  purpose,  fell,  sprang  or  jumped  from  said 
train  with  the  intent  of  inflicting  injury  upon  himself  and 
as  a  result  thereof  he  was  thrown  against  the  ground  on  or 
near  said  railway  track  with  great  violence  receiving  in- 
juries from  which  he  died  four  days  later. 

Y.  &  Y., 
Attorneys  for  Defendant. 


No.  115. 

Plea  that  Suit  Has  Abated  by  Death  of  only  Beneficiary. 

ICaption.l 

Now  comes  the  defendant,  the  C.  &  D  Railroad  Company 
and  for  plea  to  the  said  declaration  filed  herein  says : 

That  the  deceased,  E.  F.,  died  unmarried,  without  chil-> 
dren,  and  leaving  surviving  him  as  his  next  of  kin  his  fa^. 
ther,  G.  F.,  who  alone  was  entitled  to  recover  any  damages 
for  the  wrongful  death  of  said  E.  F. 

Since  the  bringing  of  this  suit,  said  father,  G.  F.,  has 
died ;  thereupon  defendant  comes  and  says  that  this  suit  abated 
upon  the  death  of  the  father,  G.  F.,  and  can  no  longer  be 
maintained. 

And  this  it  is  ready  to  verify. 

R.  Y.  and  G.  Y.  come  and  make  oath  that  they  are  attor- 
neys Tor  the  C.  &  D.  Railroad  Company  and  do  say  upon 
oath  that  the  matters  and  things  stated  in  the  foregoing  plea 
are  true  in  substance  and  in  fact.  This  plea  is  not  interposed 
for  delay.  R.  Y. 

G.  Y. 

Sworn  to  and  subscribed  before  me  this day  of , 

H.  M.,  Clerk. 


206  SUITS    AT    LAW. 

No   116. 

Answer  to  Suit  on  Fidelity  Bond. 

[Caption.] 

Comes  the  defendant  in  the  above  styled  cause,  and  for 
answer  to  each  count  of  the  complaint  filed  in  said  cause, 
separately,  says : 

1.  It  pleads  in  short  by  consent  the  general  issue. 

2.  It  denies  every  material  allegation  of  said  count. 

3.  It  says  that  it  is  not  indebted  to  the  plaintiff. 

4.  Defendant  alleges  that  the  bond  sued  on  provides  that 
the  defendant  should  not  be  liable  under  said  bond  for  any 
act  or  thing  done  or  left  undone  by  the  principal,  E.  A. 
Matthews,  in  obedience  to,  or  in  pursuance  of  any  instruction 
or  authorization  received  by  him  from  the  assured,  the  Clanton 
Bank,  or  any  superior  officer,  and  defendant  alleges  that  the 
act  or  thing  done  or  left  undone  by  the  said  E.  A.  Matthews, 
and  for  which  recovery  is  sought  in  this  suit,  was  done  or 
left  undone  by  the  said  E.  A.  Matthews  in  obedience  to  or  in 
pursuance  of  instruction  or  authorization  received  by  him  from 
the  Clanton  Bank  or  from  one  of  the  superior  officers  of  the 
said  E.  A.  Matthews. 

5.  Defendant  says  that  the  bond  sued  on  provides  that  the 
defendant  should  not  be  liable  for  any  mere  error  of  judg- 
ment or  bona  fide  mistake  or  any  injudicious  exercise  of  dis- 
cretion on  the  part  of  the  said  E.  A.  Matthews  in  and  about 
all  or  any  matters  wherein  he  shall  have  been  vested  with 
discretion,  either  by  instruction  or  by  the  rules  and  regulations 
of  the  Clanton  Bank;  and  defendant  says  that  the  acts  of 
the  said  E.  A.  Matthews,  for  which  recovery  is  sought  in 
this  suit,  consisted  of  nothing  more  than  errors  of  judgment 
or  bona  fide  mistakes  or  the  injudicious  exercise  of  discretion 
on  the  part  of  the  said  E.  A.  Matthews  in  and  about  the  mat- 
ter of  the  bank,  with  which  he  was  vested  with  discretion. 

6.  Defendant  says  that  prior  to  the  execution  of  the  bond 
sued  on,  the  said  E.  A.  Matthews  had  been,  for  a  number  of 
years,  in  the  employ  of  the  Clanton  Bank  as  its  cashier,  and 


PLEADINGS  BY  DEFENDANT,   ETC.  207 

that  during  the  time  that  he  was  so  employed  by  the  Clanton 
Bank,  prior  to  the  date  of  the  execution  of  the  bond  sued  on, 
the  said  E.  A.  Matthews  was  guiUy  of  dishonest  and  fraudu- 
lent acts,  in  pursuance  of  his  duties  as  cashier,  which  dis- 
honest or  fraudulent  acts  amounted  to  larceny  or  embezzle- 
ment and  that  the  said  Clanton  Bank,  at  the  time  that  the 
bond  sued  on  was  executed  by  the  defendant,  had  knowledge 
of  the  commission  of  said  acts  by  the  said  E.  A.  Matthews. 
Defendant  further  alleges  that  when  said  bond  was  executed 
by  it,  the  said  Clanton  Bank  concealed  from  and  failed  to  dis- 
close to  the  defendant  the  commission  of  said  acts  by  the  said 
E.  A.  Matthews,  and  thereby  perpetrated  upon  the  defenciant 
a  fraud  in  the  procurement  of  the  execution  by  the  defendant 
of  the  bond  sued  on.  Wherefore,  the  defendant  says  that  the 
plaintiff  should  not  recover  on  said  bond. 

7.  Defendant  says  that  prior  to  the  execution  of  the  bond 
sued  on,  the  said  E.  A.  Matthews  had  been,  for  a  number 
of  years,  in  the  employ  of  the  Clanton  Bank  as  its  cashier, 
and  that  during  the  time  that  he  was  so  employed  by  the 
Clanton  Bank,  prior  to  the  date  of  execution  of  the  bond  sued 
on,  he  had  on  numerous  occasions  done  some  of  the  same 
character  of  acts  and  used  the  funds  of  the  Clanton  Bank  in 
the  same  manner  as  that  for  which  recovery  is  sought  in  this 
suit;  that  the  Clanton  Bank  had  knowledge  of  these  facts  at 
the  time  that  the  bond  was  executed  by  the  defendant,  but 
concealed  from  and  failed  to  disclose  to  the  defendant  said 
facts,  and  defendant  alleges  that  said  Clanton  Bank  thereby 
perpetrated  upon  it  a  fraud  in  the  procurement  of  the  execu- 
tion of  said  bond,  which  precludes  a  recovery  upon  said  bond. 

8.  Defendant  alleges  that  the  bond  sued  on  in  this  case 
was  issued  upon  the  express  condition,  which  condition  is 
set  out  in  the  bond  sued  on,  that  on  the  discovery  of  any 
act  capable  of  giving  rise  to  a  claim  under  said  bond,  the 
Clanton  Bank  should,  at  the  earliest  practicable  moment,  give 
notice  thereof  to  the  defendant,  and  defendant  alleges  that 
the  Clanton  Bank  discovered  an  act  or  acts  capable  of  giving 


208  SUITS    AT    LAW. 

rise  to  a  claim  under  said  bond,  and  failed  to  give  notice 
thereof  to  the  defendant  at  the  earliest  practicable  moment 
after  the  discovery  thereof. 

9.  Defendant  alleges  that  the  bond  sued  on  in  this  case  was 
issued  upon  the  express  condition,  which  condition  is  set  out 
in  the  bond  sued  on,  that  on  the  discovery  of  any  act  capable 
of  giving  rise  to  a  claim  under  said  bond,  the  Clanton  Bank 
Should,  at  the  earliest  practicable  moment,  give  notice  thereof 
to  the  defendant,  and  defendant  alleges  that  the  Clanton  Bank 
discovered  an  act  or  acts  capable  of  giving  rise  to  a  claim 
under  said  bond,  and  failed  to  give  notice  thereof  to  the  de- 
fendant within  a  reasonable  time  after  the  discovery  of  said 
act  or  acts. 

10.  Defendant  alleges  that  the  bond  sued  on  in  this  case 
was  issued  upon  the  express  condition,  which  condition  is  set 
out  in  the  bond  sued  on,  that  on  the  discovery  of  any  act  cap- 
able of  giving  rise  to  a  claim  under  said  bond,  the  Clanton 
Bank  should,  at  the  earliest  practicable  moment,  give  notice 
thereof  to  the  defendant,  and  defendant  alleges  that  the  Clan- 
ton Bank  discovered  an  act  or  acts  capable  of  giving  rise  to  a 
claim  under  said  bond,  and  for  more  than  five  months  after 
making  such  discovery  failed  to  give  notice  thereof  to  the 
defendant. 

11.  Defendant  alleges  that  the  bond  sued  on  in  this  cause 
was  issued  upon  the  express  condition,  which  condition  is  set 
out  in  the  bond  sued  on,  that  on  the  discovery  of  any  act 
capable  of  giving  rise  to  a  claim  under  said  bond,  the  Clanton 
Bank  should,  at  the  earliest  practicable  moment,  give  notice 
thereof  to  the  defendant,  and  defendant  alleges  that  one  or 
more  of  the  items  for  which  recovery  is  sought  in  this  case, 
and  of  which  the  defendant  had  notice  in  the  proof  of  loss 
furnished  to  it  by  the  plaintiff,  was  discovered  by  and  known 
to  the  Clanton  Bank  more  than  five  months  before  any  notice 
thereof  was  given  by  the  Clanton  Bank  or  by  the  plaintiff  to 
the  defendant. 


PLEADINGS  BY  DEFENDANT,  ETC.  209 

12.  Defendant  alleges  that  the  bond  sued  on  in  this  case 
■was  issued  upon  the  express  condition,  which  condition  is  set 
out  in  the  bond  sued  on,  that  said  bond  should  become  void  as 
to  any  claim  for  which  the  defendant  would  otherwise  be 
liable  if  the  bank  should  fail  to  notify  the  defendant  of  the 
occurrence  of  the  act  or  omission,  out  of  which  said  claim 
might  arise,  immediately  after  it  came  to  the  knowledge  of  the 
bank ;  and  further  that  the  knowledge  of  a  president,  vice 
president,  secretary,  treasurer,  manager,  cashier  or  other  like 
executive  officer  should  be  deemed,  under  said  bond,  the  knowl- 
edge of  the  bank.  And  defendant  alleges  that  an  act  or  acts 
of  E.  A.  Matthews,  for  which  recovery  is  sought  in  this  case, 
became  known  to  the  bank  or  to  the  president,  vice  president, 
or  to  some  director  of  the  same  Clanton  Bank,  and  said  Clan- 
ton  Bank  failed  to  notify  the  defendant  of  the  occurrence  of 
said  act  or  omission  immediately  after  it  so  became  known. 

13.  Defendant  alleges  that  the  bond  sued  on  in  this  case 
was  issued  upon  the  express  condition,  which  condition  is  set 
out  in  the  bond  sued  on,  that  said  bond  should  become  void 
as  to  any  claim  for  which  the  defendant  would  otherwise 
be  liable  if  the  bank  should  fail  to  notify  the  defendant  of  the 
occurrence  of  the  act  of  omission,  out  of  which  said  claim 
might  arise,  immediately  after  it  came  to  the  knowledge  of 
the  bank ;  and  further,  that  the  knowledge  of  a  president,  vice 
president,  director,  secretary,  treasurer,  manager,  cashier  or 
other  like  executive  officer  should  be  deemed,  under  said  bond, 
the  knowledge  of  the  bank ;  and  defendant  alleges  that  an  act 
or  acts  of  E.  A.  Matthews,  for  which  recovery  is  sought  in 
this  case,  became  known  to  the  bank  or  to  the  president,  vice 
president,  or  to  some  director  of  the  bank,  and  said  Clanton 
Bank  and  said  plaintiff  failed  to  notify  the  defendant  within 
a  reasonable  time  after  the  knowledge  of  the  occurrence  of 
said  act  or  acts  so  became  known. 

14.  Defendant  alleges  that  the  bond  sued  on  in  this  case 
was  isued  upon  the  express  condition,  which  condition  is  set 


210  .  SUITS    AT    LAW. 

out  in  the  bond  sued  on,  that  said  bond  should  become  void 
as  to  any  claim  for  which  the  defendant  would  otherwise  be 
liable  if  the  bank  should  fail  to  notify  the  defendant  of  the 
occurrence  of  the  act  or  omission,  out  of  which  said  claim 
might  arise,  immediately  after  it  came  to  the  knowledge  of  the 
bank;  and  further,  that  the  knowledge  of  a  president,  vice 
president,  secretary,  treasurer,  manager,  cashier  or  other  like 
executive  officer  should  be  deemed,  under  said  bond,  the  knowl- 
edge of  the  bank.  And  defendant  alleges  that  an  act  or  acts 
of  E.  A.  Mattliews,  for  which  recovery  is  sought  in  this  case, 
became  known  to  the  bank  or  to  the  president,  vice  president, 
or  to  some  director  of  the  said  Clanton  Bank,  and  said  Clan- 
ton  Bank  and  said  plaintiff  for  more  than  five  months  after 
said  act  or  acts  so  became  known  failed  to  notify  the  defendant 
of  the  occurrence  of  such  act  or  acts. 

15.  Defendant  says  that  prior  to  the  execution  of  the  bond 
sued  on,  the  said  E.  A.  Matthews  had  been  for  a  number  of 
years  in  the  employ  of  the  Clanton  Bank  as  its  cashier,  and 
that  during  the  time  that  he  was  so  employed  by  the  Clanton 
Bank,  prior  to  the  date  of  the  execution  of  the  bond  sued  on, 
he  had  on  numerous  occasions  done  some  of  the  same  char- 
acter of  acts  and  used  the  funds  of  the  Clanton  Bank  in  the 
same  manner  as  that  for  which  recovery  is  sought  in  this  suit; 
that  the  Clanton  Bank  had  knowledge  of  these  facts  at  the 
time  that  the  bond  was  executed  by  the  defendant. 

And  defendant  alleges  that  at  the  time  said  bond  wa'^  exe- 
cuted, the  said  Clanton  Bank,  through  its  president,  repre- 
sented to  the  defendant  that  the  duties  required  of  tlie  said 
E.  A.  Matthews  had  always  been  performed  in  a  faithful 
and  satisfactory  manner.  Wherefore,  defendant  alleges  that 
the  Clanton  Bank  perpetrated  a  fraud  upon  the  defendant  in 
the  procurement  of  the  execution  of  the  bond  by  the  defend- 
ant, and  no  recovery  can  be  had  in  this  suit. 

Wr.iL,  Stakft.y  &-  Varderman, 

Attorneys  for  Defendant. 


PLEADINGS   BY   DEFENDANT,    ETC.  •  211 

No.  117. 

Disclaimer  in  Action  in  Ejectment. 
ICaption.l 

And  the  defendant,  E.  H.,  comes  and  disclaims  all  title  to 
the  property  set  forth  and  described  in  plaintiffs'  declaration. 

Y.  &  Y., 
Attorneys  for  Defendant. 


No.  118. 

Answer  of  Ry.  to  a  Petition  for  Damages  for  Personal  Injury. 

[Caption.l 

The  defendant,  for  answer  to  the  petition  of  plaintiff  here- 
in, denies  that  on  the  day  of  ,  or  other  date,  it 

or  its  agents  in  charge  of  its  train,  did  with  gross  and  wilful 
negligence,  or  in  such  reckless  or  careless  manner  operate  one 
of  defendant  company's  trains  that  the  plaintiff  was  sudden- 
ly and  without  warning  of  the  approach  of  the  train,  or  at  all, 
struck  and  knocked  from  the  said  public  highway  and  per- 
manently injured,  etc.  It  denies  that  the  plaintiff  was  at- 
tempting to  cross  a  railway  track  at  or  near  a  public  crossing 
at  the  time  she  was  struck  and  injured  by  defendant's  train. 

It  denies  that  the  plaintiff  was  injured  by  any  negligence 
of  it,  or  its  agents,  in  the  operation  of  any  of  its  trains  at  the 
time  and  place  specified  in  the  petition  and  amended  petition. 
It  states  that  it  has  not  sufficient  knowledge  or  information 
upon  which  to  form  a  belief  as  to  the  statements  of  plaintiff's 
petition,  as  to  whether  or  not  all  the  toes  on  her  left  foot  were 
cut  off,  or  said  left  foot  badly  mashed,  or  her  right  arm 
broken,  but  denies  that  by  the  carelessness  or  recklessness  of 
its  agent,  after  the  plaintiff  was  injured,  in  treating  plaintiff's 
injuries,  the  plaintiff  has  sustained  a  stiff  arm.  It  denies  that 
plaintiff  has  been  permanently  injured  or  permanently  dis- 
abled from  earning  a  livelihood.  It  denies  that  plaintiff  has 
been  damaged  in  the  sum  of  $ ,  or  any  other  sum.  Where- 
fore, etc. 


212  SUITS    AT    LAW. 

Par.  2.  The  defendant,  further  answering-,  states  that  at 
the  time  of  the  injury  complained  of,  the  plaintiff  was  guilty 
of  negligence  which  contributed  to  her  injury,  and  but  for 
which  negligence  upon  her  part,  the  injury  would  not  have 
happened;  that  said  contributory  negligence  was  committed 
as  follows,  to  wit,  the  said  plaintiff,  after  leaving  the  train 
of  defendant  and  deposited  upon  defendant's  platform  in 
safety,  carelessly  and  negligently  left  the  way  prepared  by 
defendant  for  her  and  other  passengers  to  cross  its  tracks 
to  their  destination,  which  way  was  a  perfectly  safe  way, 
and  pursued  a  shorter  and  more  dangerous  route,  and  one 
not  furnished  or  authorized  by  defendant,  although  the  reg- 
ular way  and  route  furnished  by  defendant  was  plain  and 
visible,  the  plaintiff  walked  immediately  around  the  rear  end 
of  the  coach  she  had  just  left  and  started  to  walk  diagonally 
across  defendant's  tracks,  and  without  stopping  or  looking  or 
listening  stepped  upon  an  adjoining  track  of  defendant,  when 
she  was  immediately  struck  by  an  engine  of  defendant  pass- 
ing in  the  opposite  direction,  and  without  fault  upon  defend- 
ant's part,  received  the  injuries  complained  of. 

Wherefore,  having  fully  answered,  defendant  prays  that 
it  be  hence  dismissed,  with  costs  herein  expended. 

R.  Y., 

[Verification.']  Attorney  for  Defendant. 


No.  119. 

Answer  of  Receivers  to  a  Petition  for  Damages  for  Ejectment 
from  Railway  Train. 

[Caption.'] 

Now  come  the  defendants,  E.  F.  and  G.  H.,  receivers  of 
the  C.  &  D.  Railroad  Company,  and  for  answer  to  the  peti- 
tion of  the  plaintiff,  say  that  they  admit  that  the  plaintiff 

is  a  resident  of county,  ,  as  averred  in  his  petition ; 

that  the  C.  &  D.  Railroad  Company  is  a  corporation,  and 
that  these  defendants  have  been  duly  appointed  and  qualified 


PLEADINGS  BY  DEFENDANT,   ETC.  213' 

and  are  acting  as  the  receivers  thereof,  and  that  they  were 
such  receivers  on  the  date  named  in  said  petition  operating 
the  road  therein  described,  and  were  then  and  there  common 
carriers  of  passengers  and  their  baggage  over  such  Hne  of 
railway. 

It  is  also  admitted  that  the  plaintiff  purchased  at  the  time 
named  in  his  petition  and  .was  the  owner  of  the  book  of 
mileage  tickets  described,  but  the  defendants  say  that  such 
mileage  tickets  in  said  book  did  not  entitle  the  plaintiff  to 
passage  over  the  said  road  operated  by  the  defendants. 

The  defendants  also  admit  that  the  plaintiff  on  the  date 
named  in  his  petition  boarded  a  train  upon  the  road  so  oper- 
ated,   at   ,    bound    for   ,    with   said    mileage   book 

oi  tickets,  and  that  he  presented  said  book  to  the  conductor 
of  said  train  for  passage,  as  averred  in  said  petition,  but  was 
informed  by  the  conductor  that  said  book  was  not  good  over 
said  road,  and  that  if  he  desired  to  remain  on  the  train,  as  a 
passenger,  that  he  must  pay  his  fare  to  his  destination.  This 
the  plaintiff  refused  to  do  and  he  was  ejected  from  the  train 
by  the  conductor,  using  no  more  force  than  was  necessary  to 
accomplish  the  object  intended.  And  the  defendants  further 
say  that  in  so  acting,  the  conductor  was  carrying  out  his  in- 
structions in  that  regard. 

And  the  defendants  deny  each  and  all  of  the  other  aver- 
ments contained  in  said  petition  not  herein  either  specifically 
admitted  or  denied.  R.  Y., 

Attorney  for  Defendants. 


No.  120. 

Answer  of  R.  R.  Co.  to  Petition  for  Damages  for  Personal 
Injury  —  General  Denial  with  Defense  of  Contributory 
Negligence. 

\_Caption.'\ 

The  defendant  for  answer  to  the  petition  herein,  admits  that 
it  is  and  was  a  corporation  organized  under  the  laws  of , 


214 


SUITS    AT    LAW. 


having  citizenship  and  residence  alleged,  and  that  during  the 

month  of ,  A.  D.  — : — ,  it  was  engaged  in  operating  upon 

the  railroad  tracks  described,  under  and  by  virtue  of  the 
ordinance  alleged,  said  ordinance  containing  the  provisions 
set   forth   in  said  petition. 

The  defendant  denies  each  and  every  other  allegation  there- 
in contained.  The  denial,  in  so  far  as  it  relates  to  the  alleged 
appointment  of  the  plaintiff  as  administrator  of  A.  B.,  being 
made  for  want  of  knowledge. 

Defendant  further  states  that  plaintiff's  intestate,  A.  B., 
was  himself  negligent  and  guilty  of  a  want  of  ordinary  care 
at  the  time  of  his  alleged  injuries,  in  this,  to  wit,  that  while 
in  a  place  of  safety,  and  with  full  knowledge  or  means  of 
knowledge  of  the  presence  or  approach  of  said  engine  and 
cars,  and  the  dangers  involved,  he  voluntarily  approached  the 
same  with  his  team  of  horses  and  placed  himself  in  the  per- 
ilous situation  in  which  his  injuries,  if  any,  were  sustained; 
and  that  said  want  of  care  on  the  part  of  said  A.  B.  di- 
rectly contributed  to  such  injuries,  if  any  as  he  may  have  sus- 
tained. 

Wherefore  defendant  prays  to  be  hence  dismissed  with  its 
costs.  R.  Y., 

Attorney  for  Defendant. 

[Verification.'] 


Tfo.  121. 

Answer  of   Ry.   Co.  to  Petition  for   Damages  for  Personal 

Injury  (i). 

[Caption."] 

Defendant  denies  that  while  attempting  prudently  to  obey 
the  orders  of  its  engineer,  plaintiff  was  thrown  or  precipi- 
tated from  defendant's  engine,  and  received  injuries  com- 
plained of. 

It  denies  that  its  engineer,  mentioned  in  plaintiff's  peti- 
tion, was  guilty  of  negligence  or  gross  negligence  in  moving 


PLEADINGS   BY   DEFENDANT,    ETC.  215 

defendant's  engine  at  said  time,  or  in  moving  on  the  main 
track  from  a  side  track  where  the  engine  had  been  just  prior' 
thereto,  or  on  the  time  of  an  approaching  train  of  cars  and 
denies  that  the  engine  was  in  a  defective  or  dangerous  or 
grossly  defective  or  dangerous  condition,  or  that  the  steps  of 
the  engine  which  plaintiff  was  required  to  use  in  leaving  said 
engine  were  improperly,  dangerously  or  defectively  con- 
structed and  denies  that  the  hand  hold  necessary  for  him  to 
use  in  leaving  the  engine  was  in  a  defective  or  dangerous  con- 
dition; and  has  no  knowledge  or  information  sufficient  to 
form  a  belief  whether  in  using  same  plaintiff's  hand  was 
caught,  or  his  safe  exit  from  said  engine  interfered  with. 

Defendant  denies  that  at  the  time,  or  after  plaintiff  was 
ordered  to  leave  said  engine,  or  while  in  the  act  of  alighting 
from  said  engine,  the  engineer  operated  the  engine  in  a  dan- 
gerous or  reckless  manner,  or  suddenly  so  accelerated  the 
speed  of  said  engine  as  to  greatly  or  at  all  add  to  the  danger 
of  plaintiff;  and  denies  that  plaintiff  received  all  or  any  of 
his  injuries  by  reason  of  the  negligence  or  carelessness,  or 
gross  negligence  or  carelessness  of  this  defendant,  its  agents 
or  servants,  superior  in  authority  to  plaintiff,  or  whose  orders 
he  was  bound  to  obey,  or  by  reason  of  the  alleged  defects  or 
dangerous  condition  of  the  engine  steps,  hand  holds  or  ap- 
pliances. 

Defendant  denies  that  plaintiff  did  not  know  or  could  not 
by  the  exercise  of  ordinary  care  have  known  of  the  condition 
of  the  engine,  hand  holds  and  appliances.  But  denies  that 
they  were  known  to  this  defendant  or  plaintiff's  superior  of- 
ficers or  agents,  or  could  have  been  known  to  them  by  the  ex- 
ercise of  ordinary  care  to  have  been  defective  or  dangerous, 
and  denies  that  they  were  so. 

Second.  For  further  answer  to  the  petition,  defendant 
says  that  the  engine  upon  which  plaintiff  was  riding,  as  al- 
leged in  his  petition,  was  moved  at  said  time  from  the  said 
side  track  to  the  main  track  with  the  knowledge,  consent  and 


216 


SUITS    AT    LAW. 


upon  the  suggestion  of  the  plaintiff,  and  that  the  hand  holds 
referred  to  were  upon  the  outside  of  the  engine  cab  and  upon 
the  tank  attached  to  the  engine,  in  full  view  of  the  plaintiff  as 
he  approached  the  said  engine,  and  as  obvious  to  the  plaintiff 
as  to  the  defendant  or  any  of  its  agents  or  servants,  that  plain- 
tiff had  long  been  cognizant  of  the  position  and  nature  of  said 
hand  holds,  and  had  often  used  them  before  the  accident,  and 
that  plaintiff,  in  his  contact  with  the  said  engine,  and  the 
said  hand  holds  and  in  leaving  said  engine,  did  so  carelessly 
and  negligently,  and  without  heeding  his  own  safety,  and 
thereby  contributed  directly  to  causing  and  did  cause  the  in- 
jury complained  of  in  his  petition,  and  but  for  such  negligence 
and  carelessness  of  plaintiff,  said  injury  would  not  have  oc- 
curred. 

Defendant  further  states  that  the  engineer  mentioned  in 
the  petition,  was  the  engineer  of  the  same  engine  upon  which 
plaintiff  was  riding  immediately  before  he  was  injured,  and 
was  the  engineer  of  the  train  upon  which  plaintiff  was  en- 
gaged as  the  brakeman  of  defendant,  in  defendant's  service 
at  the  time  he  was  injured,  and  was  then  and  there  the  fellow 
servant  of  the  defendant,  employed  by  the  defendant  as  was 
the  plaintiff  in  conducting  the  business  of  transportation  of 
freight  by  railroad  on  said  train. 

Wherefore  plaintiff  prays  to  be  hence  dismissed  with  its 
costs  herein  incurred  and  all  general  relief. 

R.  Y., 
Attorney  for  Defendant. 

IVeriUcation.'] 

(i)  Taken  from  Butler  vs.  111.  Cent.  R.  Co.,  105  Fed.  Rep.  1000. 


No.  122. 

Answer  of  a  Transportation  Company  to  Suit  for  Taxes  (i). 

[Caption.'] 

The  defendant,  The  Lake  Erie  Transportation  Company, 
for  its  answer  herein  says: 


PLEADINGS   BY   DEFENDANT,    ETC.  217 

It  admits  that  the  plaintiff  is  the  duly  elected,  qualified  and 
acting  treasurer  of  Lucas  County,  Ohio;  that  this  defendant 
is  a  corporation,  duly  organized  under  the  laws  of  the  state 
of  Michigan;  that  the  plaintiff  has  in  his  hands  all  the  dupli- 
cates of  said  county  containing  the  unpaid  property  taxes  due 
him  as  such  treasurer ;  that  on  said  duplicate  this  defendant  is 
charged  with  taxes  for  the  years  named  in  the  petition  on  the 
valuations  and  to  the  amounts  therein  set  forth  for  the  re- 
spective years  therein  named ;  and  that  a  copy  of  a  certificate 
containing  a  statement  of  said  taxes,  issued  by  the  auditor  of 
said  county  to  the  plaintiff,  is  attached  to  the  petition  marked 
**  Exhibit  A."  This  defendant  denies  all  and  singular  the  al- 
legations and  statements  in  the  petition  contained  not  herein 
expressed  admitted  to  be  true. 

Further  answering  this  defendant  says: 

It  is  now  and  was  during  each  and  all  of  the  years  from 
1893  ^^  1898,  inclusive,  a  corporation  duly  incorporated  and 
organized  under  the  laws  of  the  state  of  Michigan.  At  all  of 
said  times  the  general  office  for  the  business  of  said  company 
was  located  in  the  city  of  Monroe,  county  of  Monroe,  and 
state  of  Michigan.  At  all  of  said  times  it  was  a  citizen  of 
said  state  of  Michigan  and  a  resident  of  said  city  of  Monroe. 
The  business  of  said  company,  for  which  it  was  organized,  at 
all  of  said  times  was  that  of  maritime  commerce  or  naviga- 
tion within  the  state  of  Michigan  and  upon  the  frontier  lakes 
and  other  navigable  waters,  natural  or  artificial,  connected 
therewith. 

During  the  year  1893  the  defendant  owned  and  operated 
in  its  said  business  three  certain  steam  boats  or  propellers, 
known  as  the  Russell  Sage,  the  John  C.  Gault,  and  the  S.  C. 
Reynolds;  and  during  the  years  from  1894  to  1898,  inclusive, 
owned  and  operated  in  its  said  business  the  above  named  ves- 
sels and  in  addition  thereto  a  certain  other  steam  boat  or  pro- 
peller, known  as  the  George  J.  Gould. 

The  valuations  of  personal  property  charged  on  the  tax 


218 


SUITS    AT    LAW. 


duplicate  aforesaid  for  said  respective  years  consist  entirely 
of  valuations  placed  on  said  four  vessels  during  the  years 
aforesaid;  and  the  taxes  charged  on  said  tax  duplicates 
against  this  defendant  are  charged  entirely  in  respect  of  said 
vessels.  The  valuation  of  each  of  said  vessels  during  the 
years  for  which  said  taxes  are  charged,  and  the  taxes  charged 
against  the  same,  respectively,  are  shown  in  the  following 
table : 

Valuations       Valuations       Valuations  Valuations 
Gould.  Reynolds.  Sage.  Gault. 

1893  67,800  6,000  6,000 

1894  89,100  61,020  6,000  6,000 

1895  80,190  54.920  6,000  6,000 

1896  72,170  49,430  6,000  6,000 

1897  64,960  44,480  6,000  6,000 

1898  58,460  40,040  6,000  6,000 


Total  with  Penalty.       Tax  Rate. 

1893  119,700  2.86 

1894  243,180  2.86 

1895  220,665  2.90 

1896  200,400  3.12 

1897  182,160  2.98 

1898  165,750  3.32 


Tax. 

3.42342 

6,954-95 
6,399.29 

6,252.48 

5.428.37 

5.502.90 


This  defendant  further  says  that  in  the  month  of  March, 
1899,  the  auditor  of  Lucas  County,  Ohio,  wrongfully  claim- 
ing that  this  defendant  had  willfully  evaded  making  a  return 
or  statement  of  its  personal  property  taxable  within  said 
county,  and  claiming  to  act  under  the  authority  of  Sections 
2781  and  2782  of  the  Revised  Statutes  of  Ohio,  placed  upon 
the  tax  duplicate  and  certified  for  collection  to  the  said  plain- 
tiff the  taxes  and  penalties  set  forth  and  described  in  the 
petition  and  the  statement  thereto  attached.  Said  sums  so 
certified  for  collection  included  a  penalty  of  fifty  per  cent,  of 


PLEADIXGS   BY   DEFENDANT,    ETC.  219 

the  original  amounts  claimed  for  each  of  said  years,  which 
said  penalty  was  imposed  by  said  auditor. 

This  defendant  says  that  the  action  of  said  auditor  in  enter- 
ing the  valuations,  taxes  and  penalties  aforesaid  upon  his  tax 
lists  or  duplicates  and  certifying  the  same  to  the  plaintiff  for 
collection  was  wholly  without  warrant  of  law,  wrongful  and 
void. 

This  defendant  avers  that  it  never  did  evade  making  a  re- 
turn or  statement  of  its  property  for  taxation.  The  vessels 
aforesaid  were  not,  nor  was  any  of  them,  at  the  time  the  same 
were  listed  for  taxation  or  during  the  years  1893  to  1898, 
inclusive,  situated  in  the  county  of  Lucas,  and  state  of  Ohio. 

Said  vessels  during  all  of  said  years  were  owned  by  this 
defendant  company  and  were  engaged  in  the  carrying  trade 
between  various  ports  upon  the  great  lakes,  so-called,  and  the 
navigable  streams  tributary  thereto.  The  only  business  car- 
ried on  by  said  vessels  durng  said  years  within  the  state  of 
Ohio  consisted  of  the  transportation  of  freights  from  the  city 
of  Toledo,  in  Lucas  county,  Ohio,  to  ports  in  other  states  or 
the  Dominion  of  Canada,  and  from  ports  in  other  states  or 
of  the  Dominion  of  Canada,  to  said  city  of  Toledo,  and  was 
exclusively  interstate  commerce. 

Each  of  said  vessels  during  all  of  said  years  and  up  to  the 
commencement  of  this  suit  was  of  the  burden  of  twenty  tons 
and  upwards,  and  was  duly  enrolled  and  licensed  under  the 
statutes  of  the  United  States  for  the  navigation  of  the  great 
lakes  and  navigable  waters  tributary  thereto,  and  thereby  au- 
thorized to  do  a  coasting  or  foreign  trade  in  said  waters. 
The  home  port  of  said  vessels  was  at  all  said  times  at  said 
Monroe,  state  of  Michigan,  and  said  vessels  were  all  duly  en- 
rolled by  the  collector  of  the  collection  district,  including  said 
port  of  Monroe,  at  his  office  in  the  city  of  Detroit,  in  said 
state  of  Michigan,  except  that  said  vessel,  the  George  J. 
Gould,  was  prior  to  the  20th  of  August,  1897,  temporarily 
enrolled  at  Buffalo,  in  the  state  of  New  York,  where  said  ves- 


220  SUITS    AT    LAW. 

sel  was  built.  This  defendant  has  paid  all  the  fees  and  dues 
of  every  kind  required  to  be  paid  by  the  laws  of  the  United 
States  for  the  regulation  of  commerce. 

This  defendant  says  that  all  of  its  personal  property,  includ- 
ing said  vessels,  was  duly  assessed  for  taxation  by  the  proper 
authorities  of  the  state  of  Michigan  and  the  county  and  city 
of  Monroe  during  all  of  said  years;  and  this  defendant  paid 
to  said  authorities  the  taxes  levied  and  assessed  upon  its  said 
property  during  said  period.  Prior  to  the  month  of  March, 
1899,  no  tax  was  levied  or  assessed  within  the  state  of  Ohio 
against  this  defendant  on  its  said  property.  And  this  de- 
fendant has  not  at  any  time  made  any  return  of  its  said  prop- 
erty for  taxation  within  this  state.  Defendant  was  advised 
by  counsel  and  understood  and  believed  at  all  times  that  its 
said  vessels  were  not  taxable  in  Ohio  and  were  not  within 
the  jurisdiction  of  said  state  or  its  officers.  And  this  de- 
fendant alleges  that  said  auditor  and  treasurer  of  Lucas 
county  are  and  were  entirely  without  jurisdiction  or  author- 
ity to  assess  said  property  of  this  defendant  for  taxation,  or 
to  levy  and  collect  any  taxes  assessed  against  this  defendant 
in  respect  thereof. 

And  this  defendant  further  says  that  the  statutes  of  the 
state  of  Ohio  under  which,  as  aforesaid,  said  auditor  and  the 
plaintiff  claim 'the  right  to  assess  and  collect  the  taxes  herein 
sued  for,  are  in  contravention  of  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States^  in  that  if  carried  out 
to  the  logical  result  they  would  deprive  this  defendant  of  its 
property  without  due  process  of  law ;  and  because  by  the  stat- 
utes of  the  state  of  Ohio  the  said  auditor  is  entitled  to  receive 
a  fee  of  four  per  cent,  of  the  amount  of  omitted  taxes  so  as 
aforesaid  placed  by  him  on  the  tax  duplicates  and  collected 
and  paid  into  the  treasury  of  the  county. 

And  this  defendant  further  says  that  the  said  taxes  so  as 
aforesaid  imposed  upon  this  defendant  and  sued  for  herein, 
are  a  tax  and  burden  upon  the  interstate  commerce  and  trade 


PLEADINGS  BY  DEFENDANT,   ETC.  221 

carried  on  by  this  defendant  in  the  vessels  aforesaid  and  are 
imposed  upon  said  vessels  by  reason  of  their  use  in  the  carry- 
ing on  of  such  trade  and  commerce,  and  are  therefore  void  aS' 
an  interference  with  and  obstruction  of  the  exclusive  power 
of  Congress  to  regulate  commerce  with  foreign  nations  and 
between  the  states. 

This  defendant  therefore  prays  that  it  may  go  hence  with- 
out day  and  recover  its  costs  herein. 

By  Y.  &  Y.,  its  Attorneys. 

State  of  Ohio, 
Lucas  County,  ss. 

A.  W.,  being  duly  sworn,  says  he  is  the  duly  author- 
ized manager  of  the  defendant  herein,  a  corporation  non-resi- 
dent of  the  state  of  Ohio. 

The  facts  stated  in  the  foregoing  answer  are  true  as  he  be* 
Jieves.  A.  W. 

Sworn  to  before  me  and  subscribed  in  my  presence  this 
2 1st  day  of  June,  1899. 

[SeaL'\  C  M., 

Notary  Public,  Lucas  County,  Ohio. 

(i)  Taken  from  Yost  vs.  Lake  Erie  Transportation  Co.,  112  Fed.  Rep. 
746. 


No.  123. 

Answer  of  an  Incorporated  Village  to  a  Petition  to  Recover 
on  Bonds  and  Coupons. 

ICaption.'l 

First  Defense.  For  its  first  defense,  the  defendant,  answer- 
ing the  petition  herein,  says :  It  admits  that  it  is  a  municipal 
corporation,  a  village  of  the  first  class,  organized  and  existing 

under  and  by  virtue  of  the  laws  of ,  and  located  in 

county,  within  the division  of  the district  of . 


222  SUITS    AT    LAW. 

And  it  denies  each  and  every  other  averment  in  the  peti- 
tion. 

Second  Defense.     Answering  the  petition,  and  by  way  of 

its  second  defense  thereto,  it  says  that  on  or  about  the  

day   of   ,    one   C    B.,    who    was   then   mayor   of   said 

village  of ,  and  L.  P.,  who  was  then  the  clerk  of  said 

village  of ,  pretended  to  execute  on  behalf  of  said  village 

what  purported  to  be  80  bonds  for  the  sum  of  $ each,  to- 
gether with  interest  coupons  attached  thereto,  which  bonds 
and  interest  coupons  were  respectively  for  the  sums  men- 
tioned in  the  petition,  and  purported  to  mature  respectively  in 
the  amounts  and  at  the  times  stated  in  the  petition. 

But  it  says  that  the  said  C.  B.,  as  such  mayor,  and  said 
L.  P.,  as  such  clerk,  had  no  power  or  authority  at  the  time 
to  execute  or  issue  such  or  any  bonds  or  coupons  or  any  of 
them  on  behalf  of  this  defendant. 

And  it  says  that  said  pretended  bonds  and  coupons  were 
not  issued  for  the  purpose  of  procuring  necessary  means  to 
refund  and  extend  the  time  of  payment  of  certain  then  out- 
standing general  fund  bonds  theretofore  legally  issued  by 
said  village,  which  from  its  limits  of  taxation  the  said  village 
was  unable  to  pay  at  maturity;  and  it  says  that  there  was  at 
the  time  no  outstanding  general  fund  bonds  or  any  other 
bonds  of  said  village  outstanding  or  maturing,  and  that  the 
said  village  was  not  indebted  at  the  time  in  any  sum  whatever 
upon  any  of  its  bonds  theretofore  issued,  nor  were  any  such 
bonds  of  the  defendant  in  any  sum  whatever  then  outstand- 
ing, nor  had  the  defendant  at  said  time  or  theretofore  issued 
any  of  its  bonds;  and  it  says  that  any  issue  of  bonds  by  the 
defendant  at  said  time  would  be  to  that  extent  an  increase  of 
the  indebtedness  in  that  amount  of  the  defendant.  It  says 
that  the  said  pretended  bonds  did  not  upon  their  face  express 
the  purpose  for  which  they  were  purported  to  be  issued,  nor 
any  purpose  for  which  they  purported  to  be  issued;  and  ad- 
mitting that  the  defendant  is  a  municipal  corporation,  and  a 


PLEADINGS   BY    IlKFENDANT,    ETC.  223 

village  of  the  first  class  as  averred  in  the  petition,  it  denies 
every  averment  and  fact  stated  in  the  petition  not  herein 
specifically  admitted;  and  it  asks  to  be  hence  dismissed,  and  to 
recover  its  costs.  R.  Y., 

Attorney  for  Defendant. 

The  State  of , 

County  of ,  ss. 

W.  W.,  being  duly  sworn,  says  he  is  clerk  of  the  defendant, 

the  village  of ,  duly  authorized  in  the  premises,  and  that 

the  allegations  and  statements  in  the  foregoing  answer  con- 
tained are  true  as  he  verily  believes. 

[Seal  of  corporation  clerk.]  W.  W.,  Clerk. 

Sworn  to  before  me  by  the  said  W.  W.,  clerk,  and  by  him 

subscribed  in  my  presence,  this day  of ,  A.  D.  . 

G.  McC, 

[Seal.]  Notary  Public. 


No.  124. 

Reply  to  Answer. 
[Caption.] 

Xow  comes  the  plaintiff,  and  for  reply  to  the  answer  herein 
filed  denies  each  and  every  allegation  therein  contained  which 
is  not  an  expressed  denial  or  admission  of  the  allegations  set 
forth  in  the  amended  petition  herein  filed. 

R.  X., 
Attorney  for  Plaintiff. 


No.  125. 

Similiter  (1)  and  Replica' ions  to  PleasO 

[Caption.] 

Xow  comes  the  plaintiff.  American  Colortype  Company,  a 
corporation,  by  Zane.  Morse,  McKinney  &  Mcllvaine,  its  at- 
torneys, and,  as  to  the  plea  of  the  defendant  first  above  pleaded, 


224  SUITS    AT    LAW. 

as  to  which  the  defendant  has  put  itself  upon  the  country, 
doth  the  like. 

And  as  to  the  plea  of  the  defendant  secondly  above  pleaded, 
the  plaintiff  says  that  it  ought  not  to  be  precluded  from  fur- 
ther maintaining  its  aforesaid  action  by  anything  in  that  sec- 
ond plea  alleged,  because  it  says  that  it,  the  plaintiff,  did  not 
promise  in  manner  and  form  as  the  defendant  hath  in  said 
second  plea  complained  against  it;  and  of  this  the  plaintiff 
puts  itself  upon  the  country. 

And  ^s  to  the  plea  of  the  defendant  thirdly  above  pleaded, 
the  plaintiff  says  that  it  ought  not  to  be  precluded  from  fur- 
ther maintaining  its  aforesaid  action  on  account  of  anything  in 
said  third  plea  alleged,  because  it  says  that  at  the  time  of  the 
making  of  the  said  promises  in  the  said  declaration  mentioned, 
the  plaintiff  was  then  and  there  a  foreign  corporation  duly, 
etc.,  and  of  this  the  plaintiff  puts  itself  upon  the  country. 

(1)  Most  of  the  states  have  adopted  a  code  of  civil  procedure 
based  largely  on  the  original  Field  Code  of  New  York,  but  with 
many  departures  which  illustrate  the  development  of  the  system 
under  varied  and  widely  separated  conditions;  four  states  have  re- 
cently authorized  or  adopted  court  rules  of  procedure,  and  a  half 
dozen  states  still  adhere  to  common  law  pleading,  while  a  few  adhere 
in  part,  especially  in  New  England.  Shelton,  in  "Spirit  of  the  Courts" 
at  page  227,  presents  the  situation  as  it  existed  in  July,  1918,  as 
above  stated. 

The  opposition  to  the  present  federal  system  existing  under  the 
conformity  act  has  been  developing,  and  although  bills  introduced 
into  congress  from  time  to  time  to  authorize  the  supreme  court  to 
prescribe  rules  governing  civil  procedure  at  law,  as  it  has  in  equity, 
admiralty  and  bankruptcy,  have  never  gotten  beyond  committee,  yet 
the  fight  goes  hopefully  on,  and  an  increasingly  favorable  sentiment 
appears.  Such  a  bill  is  pending  in  the  appropriate  committee  of  each 
branch  of  congress  at  the  present  time  (August,  1919). 


No.  126. 

Joinder  and  Replication. 

[Caption.] 

First.  The  plaintiff  comes  by  his  attorneys  and  joins  issue 
on  the  defendant's  first  plea. 


PLEADINGS  BY  DEFENDANT,  ETC.  225 

Second.  Comes  the  plaintiff,  by  his  attorneys,  and  for  repli- 
cation to  the  defendant's  second  plea,  says  the  negligence  of 
the  deceased  did  not  materially  contribute  to  or  cause  the 
injury  complained  of  in  plaintiff's  declaration. 

Third.  Comes  the  plaintiff,  by  his  attorneys,  and  for  repli- 
cation to  the  defendant's  third  plea,  says  the  plaintiff's  right 
of  action  did  not  accrue  more  than  a  year  next  before  the 
plaintiff  commenced  his  action.  R.  X., 

Attorney  for  Plaintiff. 


No.  127. 

Replication  to  Pleas  in  Suit  on  Policy  of  Insurance. 

[Caption.'] 

Plaintiff,  for  replication  to  defendant's  second  plea,  says: 

First.  It  is  not  true  that  the  policy  of  insurance  involved 
in  this  cause  was  issued  in  consideration  and  only  because  of 
certain  statements  and  warranties  made  in  the  application  for 
a  policy. 

Second.  It  is  not  true  that  in  said  application  plaintiff's  intes- 
tate made  false  and  untrue  statements. 

Third.  If  plaintiff's  intestate  did  make  false  and  untrue 
statements  in  said  application  for  insurance  in  the  defendant's 
company,  said  statements  were  not  made  with  any  intent  to 
deceive,  nor  did  they  increase  the  risk. 

Fourth.  If  plaintiff's  intestate  made  false  and  untrue  state- 
ments in  said  application  for  insurance  in  defendant's  com- 
pany in  that  he  stated,  as  alleged  by  defendant,  that  he  had  no 
insurance  paying  weekly  indemnities,  said  statement  was  im- 
material to  the  risk  insured  against  by  defendant,  in  the  event 
of  death,  and  defendant  has  ratified  said  compact  since  the 
death  of  plaintiff's  intestate  and  is  thereby  estopped. 

Fifth.  Plaintiff  further  avers  that  said  contract  of  insur- 
ance is  severable,  insuring  plaintiff's  intestate  in  a  certain 
amount  in  the  event  of  death  from  accident,  and  in  another 


226  SUITS    AT    LAW. 

amount  for  injury  by  accident,  and  that  the  statements  made 
by  plaintiff's  intestate  as  to  matters  pertaining  to  the  insur- 
ance oi  weekly  indemnity  has  no  application  to  that  part  of 
the  policy  agreeing  to  pay  a  certain  amount  in  the  event  that 
death  resulted. 

Plaintiff,  for  replication  to  defendant's  third  plea,  says: 

First.  It  is  not  true  that  plaintiff's  intestate  stated  that  he 
never  had  fits  and  disorders  of  the  brain. 

Second.  If  plaintiff's  intestate  said  in  his  application  that 
he  had  never  had  fits  or  disorders  of  the  brain  the  same  was 
true  as  stated. 

Third.  If  plaintiff's  said  intestate  had  had  fits  or  disor- 
ders of  the  brain,  he  had  recovered  therefrom  prior  to  the  tak- 
ing out  of  this  insurance,  and  it  is  untrue  that  his  brain 
became  disordered  until  the  time  of  his  death,  as  alleged  by 
defendant. 

Plaintiff,  for  replication  to  defendant's  fourth  plea,  says: 
It  is  not  true  the  plaintiff's  intestate  was  not  in  sound  condi- 
tion, physically  and  mentally,  at  the  time  said  insurance  was 
issued  to  him. 

Plaintiff,  for  replication  to  defendant's  fifth  plea,  says:  It 
is  not  true  as  alleged  that  his  intestate  committed  suicide  on 
the  day  and  in  the  manner  alleged  in  said  plea. 

X.  &  X., 
Attorney  for  Plaintiffs. 


No.  128. 

Reply  to  Answer  in  Suit  on  Municipal  Bonds. 

[Caption.'] 

The  plaintiff  replying  to  the  amended  answer  of  the  defend- 
ant filed  herein,  says:  That  as  to  all  and  singular  the  aver- 
ments thereof,  excepting  only  such  as  are  admissions  of  the 
allegations  of  this  plaintiff's  petition,   this  plaintiff  has  no 


PLEADINGS   BY   DEFENDANT^   ETC.  227 

knowledge  or  information  of  the  truth  thereof,  and  therefore 
denies  the  same. 

Further  replying,  this  plaintiff  says  that  it  purchased  said 
bonds,  to  which  said  coupons  Were  attached,  on  the  open 
market,  for  a  valuable  consideration,  without  any  notice 
whatever  of  any  infirmities  connected  with  the  same,  and 
relying  upon  the  recitals  in  said  bonds,  that  said  bonds,  and 
each  of  them,  recited  among  other  things  as  follows,  to  wit: 
**  It  is  hereby  certified  that  all  acts  and  things  necessary  to  be 
done  precedent  to  and  in  the  issuing  of  these  bonds  have  been 
done  and  performed  in  regular  and  due  form,  as  required  by 

law,  and  the  faith  and  credit  of  the  village  of are  hereby 

pledged  for  the  prompt  payment  of  the  principal  and  the  in- 
terest hereof,  at  maturity."  "  (This  bond  is  issued  for  the 
purpose  of  refunding  certain  bonds  issued  by  said  village, 
,  which  are  taken  up  and  discharged.)" 

That  by  reason  of  said  recitals  as  set  forth  in  said  bonds, 
the  said  village  of represented  that  said  bonds  were  is- 
sued for  the  purpose  of  refunding  a  legal  debt  of  said  city. 
And  that  all  acts  and  things  required  to  be  done  or  performed 
were  properly  performed  and  done  as  required  by  law.  That 
plaintiff,  purchasing  said  bonds  upon  the  open  market  as 
aforesaid,  relied  upon  said  recitals  so  set  forth,  and  relied  upon 
the  representations  as  set  forth  in  said  bonds  and  defendant 
is  now  estopped  to  assert  that  said  bonds  were  issued  for  any 
other  purpose  than  is  therein  recited,  and  is  estbpped  to  assert 
the  invalidity  of  the  same. 

Further  replying,  says  that  of  all  and  singular  the  aver- 
ments thereof  referring  to  the  various  acts  of  the  municipal 
corporation  in  issuing  said  bonds,  and  the  purpose  -thereof, 
and  the  direction  and  proceeds  thereof,  this  plaintiff,  at  the 
time  of  the  purchase  of  said  bonds,  had  no  knowledge  thereof 
and  naught  to  do  with  said  acts,  purpose  and  proceeds. 

Further  replying,  says  that  when  this  plaintiff  became  the 
owner  and  holder  of  said  bonds  and  coupons,  that  the  coupons 


22S  SUITE    AT    i:^W. 

representing  and  evidencing  the  first  installment  of  interest 
due  on  said  bonds,  had  been  detached  therefrom.  For  any- 
thing this  plaintiff  knew  to  the  contrary,  said  coupons  had 
been  paid  and  redeemed  by  said  defendant. 

Wherefore,  this  plaintiff  prays  as  in  its  petition. 

X.  &  X., 
Attorneys  for  Plaintiff. 

State  of , 

' County,  ss. 

R.  X.,  being  first  duly  sworn,  says  that  he  is  one  of  the 
attorneys  of  the  plaintiff  herein,  duly  authorized;  that  the 
plaintiff  is  a  foreign  corporation  and  a  non-resident  of  the 

state  of ,  and  that  the  facts  stated  in  the  foregoing  reply 

are  true  as  he  verily  believes. 

R.  X, 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 
— —  day  of ,  A.  D,  . 


ISeal.l  D.  M., 

Notary  Public. 

No.  129. 

Reply  by  Plaintiff  Denying  Contributory  Negligence. 

ICaption.'] 

And  now  comes  A.  B.,  plaintiff  in  the  above  entitled  cause, 
and  for  reply  to  the  answer  of  the  defendant,  the  C.  &  D. 
Railroad  Company,  filed  herein,  says  that: 

He  denies  that  the  said  injury  received  by  the  plaintiff  was 
caused  by  or  was  the  result  of  the  plaintiff's  own  carelessness. 

He  denies  that  the  said  injury  received  by  the  plaintiff  was 
caused  by  or  was  the  result  of  the  plaintiff's  own  negligence; 
and, 

He  denies  that  any  carelessness  or  negligence  of  his  directly 
contributed  to  said  injury. 


PLEADINGS  BY  DEFENDANT,   ETC.  229 

Wherefore,  plaintiff  prays  as  in  his  petition. 

R.  X., 
Attorney  for  Plaintiff. 

State  of , 

County  of  ,  ss. 

A.  B.,  being  first  duly  sworn,  according  to  law,  upon  his 
oath  deposeth  and  saith  that  he  is  the  plaintiff  in  the  above 
entitled  cause  and  that  the  facts  set  forth  in  the  foregoing 
reply  to  the  answer  are  true  as  he  verily  believes. 

A.  B. 


Sworn  to  and  subscribed  before  me,  this day  of 

A.  D. . 


[Seal.:\                                                                  J.  N., 
Notary  Public, County, 


No.  130. 

Replication  and  Demurrer  to  Defendant's  Pleas. 

[Caption.^ 

For  replication  the  defendant  comes  and  joins  issue  with 
the  defendant  upon  its  first,  third,  fourth  and  fifth  pleas. 

R.  X., 
Attorney  for  Plaintiff. 

Plaintiff  demurs  to  defendant's  second  plea  because  the 
matter  set  forth  there  therein  has  been  adjudged  against 
the  defendant  by  the  court  in  this  cause  upon  defendant's  de- 
murrer to  plaintiff's  original  declaration  and  is  res  adjudicata. 

Plaintiff  demurs  to  defendant's  sixth  and  seventh  pleas. 
They  are  each  of  them  immaterial  and  insufficient,  because 
as  is  alleged  in  the  amended  declaration  filed  in  this  case  on 

,  the  defendant  denied  all  liability  under  the  policy  sued 

on  in  this  cause.  Such  denial  was  a  waiver  of  all  matters 
referred  to  in  each  of  them. 


230  SUITS    AT   LAW. 

The  plaintiff  prays  the  judgment  of  the  court  as  to  whether 
it  be  necessary  to  make  any  other  or  further  answer  to  said 
second,  sixth  and  seventh  pleas  or  either  of  them. 

R.  X., 

Attorney  for  Plaintiff. 


No.  131. 

Rejoinder  to  Replication. 
[Caption  ] 

Defendant,  for  rejoinder  to  said  replication,  says  it  did  not 
waive  the  said  condition  as  the  plaintiff  hath  alleged. 

For  further  rejoinder  defendant  says  it  did  not  have  knowl- 
edge of  the  existence  of  the  Baloise  policy  as  stated  in  the 
replication. 

R.  Y., 
Attorney  for  Defendant. 


PROCESS,  MOTIONS,  JUDGMENT,  BILLS  OP 
EXCEPTIONS,  ETC. 


No.  131a. 

Praecipe  for  Summons. 
[Caption.] 

The  clerk  of  said  court  will  issue  a  summons  in  said  cause 
to  said  defendants,  in  a  plea  of  trespass  on  the  case  on  prom- 
ises, to  the  damage  of  said  plaintiff  in  the  sum  of  fifteen 
thousand  dollars,  direct  the  same  to  the  United  States  marshal 
for  said  district  to  execute,  and  make  it  returnable  to  the 
November  term  of  said  court,  1912. 
Dated  this  18th  day  of  October,  A.  D.  1912. 

A.  and  B., 
Plaintiff's  Attorneys. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  231 

No.  132. 

Summons  at  Law. 

The  United  States  of  America, 
District  of  ,  ss. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

You  are  hereby  commanded  to  summon  C.  D.,  citizen  of 

and  resident  in  the  state  of  ,   if  he  be  found   in  your 

district,  to  be  and  appear  in  the  district  court  of  the  United 

States  for  the  district  of  aforesaid,  at  ,  on 

the  Tuesday  in  the  month  ,  1894,  to  answer  unto 

A.  B.,  citizen  of  and  resident  in  the  state  of  ,  in  civil 

action  for  [as  may  be]  .     And  have  you  then  and  there 

this  writ. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  133. 

Teste  for  Writs  Issuing  from  a  District  Court  (1). 

Witness  the  Honorable  G.   N.,  Judge  of  the  district 

court  of  the  United  States,  this day  of , 

[Seal]         1894,  and  in  the  118th  year  of  the  Independence 
of  the  United  States  of  America. 

Attest:    B.  R., 
Clerk. 

(1)  See  R.  S.,  Sec.  911;  Desty's  Fed.  Proc,  Sec.  433,  and  cases  there 
cited;  Foster's  Fed.  Prac,  5th  ed.,  Sees.  295  and  455,  and  cases  cited 
in  notes;  also  Gould  and  Tucker's  Notes  on  the  Revised  Statutes, 
pages  283  and  287. 


232  SUITS    AT    LAW. 

No.  134. 

(Another  form.) 
Summons  in  Action  in  Assumpsit. 
United  States  of  America, 

Southern  District  of  West  Virginia,  ss. 

The  President  of  tlie  United  States  of  America. 

To  the  Marshal  of  the  Southern  District  of  West  Vir- 
ginia, Greeting: 

You  are  liereljy  commanded  to  summon  The  Chesapeake 
&  Ohio  Coal  &  Coke  Company,  a  corporation  of  West  Vir- 
ginia, and  as  such  a  citizen  and  resident  of  the  state -of  West 
Virginia  and  the  southern  district  thereof,  if  it  be  found  in 
your  district,  to  be  and  appear  in  the  district  court  of  the 
United  States,  for  the  southern  district  of  West  Virginia, 
aforesaid,  at  rules  to  be  held  in  the  clerk's  office  of  said  court, 
at  Charleston,  on  the  first  Monday  in  October,  1912,  next, 
to  answer  unto  The  Toledo  and  Ohio  Central  Railway  Com- 
pany, a  corporation  of  Ohio,  and  as  such  a  citizen  of  the  state 
of  Ohio,  of  a  plea  in  assumpsit ;  damages  twenty  thousand 
dollars  ($20,000.00). 

Hereof  you  are  to  fail  not,  under  the  penalty  of  the  law 
thence  ensuing,  and  have  you  then  and  there  this  writ. 

Witness  the  Honorable  X.  Y.,  judge  of  the  district  court 
of  the  United  States  for  the  southern  District  of  West  Vir- 
ginia, this day  of ,  1918.  Attest:     K.  G., 

Clerk  of  said  Court. 


No.  135. 

Writ  in  Action  of  Tort,  in  Massachusetts,  and  Return. 

[Caption.] 
[L.  S.]     Massachusetts  District,  ss. 
The  President  of  the  United  States  of  America. 

To  the  Marshal  of  our  District  of  Massachusetts,  or  his 
Deputy,  Greeting: 
We  command  you  to  attach  the  goods  or  estate  of  Boston 
Elevated  Railway  Company,  a  corporation  organized  and  exist- 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  233 

ing  under  the  laws  of  the  commonwealth  of  Massachusetts,  a 
citizen  of  said  commonwealth  and  having  an  usual  place  of 
business  in  Boston  in  the  county  of  Suffolk  in  our  district  of 
Massachusetts,  to  the  value  of  fifteen  thousand  dollars,  and  to 
summon  said  defendant  (if  it  may  be  found  in  your  district), 
to  appear  before  our  judge  of  our  district  court,  next  to  be 
holden  at  Boston,  within  and  for  our  said  district  of  Massa- 
chusetts, on  the  first  Tuesday  of  December.  Then  and  there, 
in  our  said  court,  to  answer  unto  Mary  Hazard  Teele,  a  citizen 
and  resident  of  Chevy  Chase  in  the  county  of  Montgomery 
and  state  of  Maryland,  in  an  action  of  tort.  To  the  damage  of 
the  said  plaintiff  (as  she  says)  the  sum  of  fifteen  thousand 
dollars,  which  shall  then  and  there  be  made  to  appear,  with 
other  due  damages.  And  have  you  there  this  writ,  with  your 
doings  therein. 

Witness,  the  Honorable  James  M.  Morton,  Jr.,  at  Boston, 
the  ninth  day  of  November  in  the  year  of  our  Lord,  one  thou- 
sand nine  hundred  and  fifteen. 

William  Nelson, 

Clerk. 
Officer's  Return  on  Writ. 

United  States  of  America, 

Massachusetts,  District,  ss. 

Pursuant  hereunto  I  have  this  day  attached  a  chip  as  the 
property  of  the  within-named  Boston  Elevated  Railway  Com- 
pany, and  on  the  same  day  I  summoned  the  said  defendant 
corporation  to  appear  at  court  and  answer  as  herein  directed, 
by  giving  in  hand  to  Henry  L.  Wilson,  treasurer  thereof  and 
in  charge  of  its  business,  a  true  and  attested  copy  of  and  an 
original  summons  to  this  writ,  at  Boston,  in  said  district. 

A.  B., 
FEES :  U.  S.  Marshal, 

Service   $2.00  .   By  C  D.. 

Copy 30  Deputy. 

Travel 06 

$2.36 


234  SUITS    AT    LAW. 

No.  136. 

Alias  Summons  and  Return. 

United  States  of  America, 

Eastern  District  of  Tennessee, 
Northeastern  Division,  ss. 

The  President  of  the  L'nited  States  of  America. 

To  the   Marslial   of   the   Eastern   District   of  Tennessee, 
Greeting: 

You  are  liereby  commanded  as  you  have  heretofore  been 
to  summon  WaUer  L.  Elhott,  John  H.  Sifford,  Clarence  E. 
Ferguson,  Thomas  F.  Able,  Claude  Jones,  John  T.  Quisen- 
berry  and  John  S.  Martin,  if  to  be  found  in  your  district,  to  be 
and  appear  before  the  district  court  of  the  United  States,  for 
the  eastern  district  of  Tennessee,  aforesaid,  at  the  federal 
court  rooms  in  Greeneville,  in  said  state,  on  the  first  Monday 
in  the  month  of  March,  1915,  then  and  there  to  answer  the 
declaration  of  Isaac  S.  Cousins  in  civil  action  for  damages 
filed  in  this  court  for  the  sum  of  ($15,000.00)  fifteen  thou- 
sand dollars. 

Herein  fail  not,  and  have  you  then  and  there  this  writ. 

Witness  the  Honorable  Edward  T.  San  ford,  judge  of  the 
district  court  of  the  United  States,  this  the  13th  day  in  Janu- 
ary, in  the  year  of  our  Eord  one  thousand  nine  hundred  and 
fifteen  and  in  the  139th  year  of  the  inrlependence  of  the 
United  States  of  America. 

Horace  Van  Deventer, 

Clerk, 
By  H.  L.  MiLLiGAN, 

Deputy  Clerk. 
United  States  of  America, 

Eastern  District  of  l^ennessee,  ss. 

Received  this  writ  on  the  18th  day  of  January,  1915,  at 
Johnson  City  in  Washington  county,  Tennessee ;  and  on  the 
19th  day  of  January,  1915,  executed  tlie  same  by  reading 
this  summons  and  delivering  a  copy  of  same  to  Walter  L. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  235 

Elliott,  John  H.  Sifford  and  John  T.  Quisenberry.  Return 
to  office  this  February  18th,  1915.  The  other  defendants 
not  to  be  found. 


MARSHAL  S   COSTS  : 


summons  at  S2 .  .  $6.00  U.  S.  Marshal, 

miles  at  6c,  16.  . .     .96  By  W.  M.  Hyder, 

Expenses  dinner 50  Deputy  Marshal. 


Total    $7.46 


No.  137. 

Teste  for  Writs  Issuing  from  the  Supreme  Court  or  a  Circuit 
Court  of  Appeals. 

Witness  the  Honorable  Melville  W.  Fuller,  Chief  Jus- 
tice of  the  United  States,  this  day  of  , 

[Seal.]  1894,  and  in  the  118th  year  of  the  independence 

of  the  United  Slates  of  America. 

Attest:     B.  R., 

Clerk. 

No.  138. 
Return  of  Writ  by  Marshal  (1). 

Received  this  writ  on  the  day  of ,  1894,  and  on 

the day  of ,  1894.  I  served  the  same  by  handing  a 

true  copy  tliereof,  with  the  indorsement  thereon,  to  said  C.  D. 
personally  [or  say,  I  left  a  like  copy  thereof,  with  the  indorse- 
ment thereon,  with  an  adult  person,  who  is  a  member  (or, 
resident)  in  the  family  of  C.  D.,  at  the  usual  place  of  residence 
of  said  C.  D.]. 

H.    C, 
fees:  United  States  Marshal  for  the 

Copy,        district  of . 

Mileage,  

Service,    

$ 


(1)  See  13th  Rule  in  Equity. 


236  SUITS    AT    LAW. 

No.  139. 

Cost  Bond  (1). 

District  Court  of  the  United  States, 

for  the District  of ,  ss. 

A.  B.,  Plaintiff,        \  ^, 

f  No.  . 

vs.  y  ^    T^    ^ 

C.  D.,  Defendant.    )  '="''  ''°"''- 

I  hereby  acknowledge  myself  security  for  costs  in  the  above 
entitled  cause. 

E.  F.  [Seal.] 

Taken  and  acknowledged  before  me  this day  of , 


1894.  B.   R., 

[Seal.]                    Clerk   of  District   Court   of  the   United 
States  for  the District  of . 


I,  E.  P.,  a  resident  of  said  district,  do  solemnly  swear,  that 

after  paying  my  just  debts  and  liabilities  I  am  worth  

dollars,   in  real  estate  within  the  jurisdiction  of  this  court, 
and  subject  to  execution,  levy  and  sale.  E.  F. 

Sworn  to  and  subscribed  before  me  this day  of , 

1894.                                                                              B.  R., 
[Seal.]                    Clerk   of  District   Court   of  the   United 
States  for  the District  of . 

(I)  This    form   of   bond    was    sustained    in   Fewlass    v.    Keeshan,   88 
Fed.  Rep.  573.  32  C.  C.  A.  8. 


No.  140. 

Notice  to  Surety. 
The  United  States  of  America, 
— —  District  of .  ss. 


A   B.,  Plaintiff,         "i     t      .      t^-      •      ^  r    ,      tt  •     » 

^'      '  f     In  the  District  Court  of  the  United 

VS  r 

.^  '      .     ^       i         States  for  the district  of . 

C.  D.,  Defendant.      ; 

To  E.  F.,  security  for  costs  in  the  above  entitled  cause : 

This  is  to  give  you  notice,  that  on  ,  the day  of 

,  1894,  at  10  o'clock  in  the  morning,  or  as  soon  there- 


PROCESS,   MOTIONS,  JUDGMENT,   ETC.  237 

after  as  counsel  can  be  heard,  the  said  circuit  court  will  be 
moved  to  enter  up  judgment  in  the  name  of  said  defendant, 
C.  D.,  against  you  as  security  for  costs  in  the  above  entitled 

cause  for  dollars  and  cents,  the  amount  of  costs 

adjudged  against  the  said  C.   D.  at   the  term  of  said 

court,  1894,  and  still  remaining  due  and  unpaid;  also  for 
the  interest  thereon,  and  the  costs  of  increase  that  may  be 
found  due,  including  the  costs  of  this  proceeding. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

[Seal.]  affixed  the  seal  of  said  court  at  this  

day  of ,  1894.  B.  R., 

Clerk. 


No.  141. 

Affidavit  by  Poor  Person  to  Dispense  with  Security  for  Costs. 

[Caption.] 

State  of , 

County  of ,  ss, 

A.  B.,  administrator,  being  duly  sworn,  deposes  and  says 
that  he  is  a  citizen  of  the  United  States  of  America :  that  he 
is  the  plaintiff  in  the  above  named  action  and  is  entitled  to 
commence  and  maintain  the  same  in  said  court. 

He  further  states  the  fact  to  be  that  because  of  the  poverty 
of  said  estate  and  said  widow  and  children  (1)  for  whose 
benefit  this  action  is  brought,  he  is  unable  to  pay  the  costs  of 
said  action  or  to  give  security  for  the  same,  and  that  he  be- 
lieves he  is  entitled  to  the  redress  he  seeks  by  such  action,  and 
that  the  nature  of  his  cause  of  action  is  correctly  and  concisely 
set  out  in  his  petition  filed  in  said  case. 

He  further  states  that  this  affidavit  is  made  and  filed  for 
the  purpose  of  availing  himself  of  the  rights  and  privileges  in 
such  case  provided  by  the  act  of  congress,  chapter  209,  ap- 


238  SUITS    AT    LAW. 

proved  July  20th,  A.  D.  1892,  as  amended  by  act  of  June  25, 
1910,  chapter  435,  36  Stat.  L.  866. 

A.  B. 
Subscribed  by  the  said  A.  B.  in  my  presence  and  by  him 

sworn  to  before  me,  this day  of ,  A.  D.  . 

B.  C. 
[ScoL]  Notary  Public. 

(1)  The  affidavit  must  show  that  all  beneficiaries  and  real  parties 
in  interest  are  unable  to  pay  costs  or  furnish  security.  Reed  v.  Penn- 
sylvania Co.,  Ill  Fed.  714;  Clay  v.  Southern  Ry.  Co.,  90  Fed. 
472,  33  C.  C.  A.  616;  Boyle  v.  R.  R.  Co..  63  Fed.  539. 

See  195  U.  S.  243.  49  L.  Ed.  178,  and  236  U.  S.  43,  59  L.  Ed.  457, 
206  Fed.  863,  and  213  Fed.  504. 

The  conditions  under  the  original  statute  and  the  effect  of  the 
amendment  of  1910  are  succinctly  set  forth  in  Kinney  v.  Plymouth 
Rock  Squab  Co.,  236  U.  S.  43,  59  L.  Ed.  457,  wherein  it  is  said  at 
page  43:  "Prior  to  the  amendment  of  1910  on  the  face  of  the  statute 
three  things  were  certain:  (a)  that  the  statute  imposed  no  imperative 
duty  to  grant  a  request  to  proceed  as  a  poor  person  but  merely 
conferred  authority  to  do  so  when  the  fact  of  poverty  was  estab- 
lished and  the  case  was  found  not  to  be  frivolous,  that  is,  was  con- 
sidered to  be  sufficiently  meritorious  to  justify  the  allowance  of  the 
request;  (b)  that  there  was  no  power  to  grant  such  a  request  when 
made  by  a  defendant;  and  (c)  that  there  was  also  no  authority  to 
allow  a  party  to  proceed  as  a  poor  person  in  appellate  proceedings 
in  this  court  or  the  circuit  courts  of  appeals.  Bradford  v.  Southern 
Railway,  195  U.  S.  243.  Clarifying  the  first  section  as  amended  by 
these  considerations,  it  becomes  clear  that  the  sole  change  operated 
by  the  amendment  was  to  bring  defendants  within  the  statute  and 
to  extend  its  provisions  so  as  to  embrace,  first,  proceedings  on  appli- 
cation for  the  allowance  of  a  writ  of  error  or  appeal  to  this  court 
and  the  circuit  court  of  appeals,  and  second,  the  appellate  proceed- 
ings in  such  courts.  This  being  true,  it  is  clear  that  as  to  the  new 
subjects,  the  allowance  of  the  right  in  those  cases  was  made  to 
depend  upon  the  exercise  of  the  same  discretion  as  to  the  meritorious 
character  of  the  cause  to  the  same  extent  provided  under  the  statute 
before  amendment." 

Where  attorneys  are  prosecuting  a  case  on  a  contingent  fee  basis 
plaintiff  can  not  proceed  in  forma  pauperis  where  attorneys  are  able 
to  secure  costs.  Esquibel  v.  A.  T.  &  S.  F.  Ry.  Co.,  206  Fed.  863; 
Silvas  v.  Arizona  Copper  Co.,  213  Fed.  504  (but  see  reversal  of  this 
case  in  220  Fed.  116). 

An  affidavit  of  poverty  should  be  so  certain  in  its  statements  that 
a  cl'.arge  of  perjury  could  be  based  thereon  if  false,  and  it  is  not  suffi- 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  239 

cient  to  swear  that  by  reason  of  plaintiff's  poverty  "she  is  unable  to 
give  security  for  said  costs"  when  defendant  had  demanded  that  plain- 
tiff give  security  for  costs  in  the  sum  of  $1,000,  since  inability  may  have 
been  as  to  amount,  not  an  absolute  inability  such  as  the  statute  con- 
templates. Woods  V.  Bailey,  111  Fed.  121.  Truth  of  the  affidavit 
can  be  contested  only  on  motion  to  dismiss  under  section  4  of  the 
act.    113  Fed.  390. 


No.  142. 

Certificate  of  Counsel  to  Poverty  Affidavit  (1). 

[Caption.] 
To  the  Honorable,  the  Judge  of  said  Court : 

I  am  one  of  the  attorneys  of  record  of  the  plaintiff  in  the 
cause  referred  to  in  the  foregoing  affidavit.  I  further  state 
that  I  have  examined  said  plaintiff's  case  and  believe  that  he 
has  a  just  cause  of  action  and  that  the  same  is  substantially  as 
stated  in  his  petition,  and  I  verily  believe  that  because  of  his 
poverty  the  plaintiff  is  unable  to  pay  the  costs  of  said  action 
or  to  give  security  for  the  same. 

I  further  declare  and  stipulate  that  no  agreement  or  under- 
standing has  been  entered  into  between  said  plaintiff  and  his 
attorney,  or  counsel  for  a  division,  or  share  of,  or  interest  in, 
the  judgment  sought  to  be  recovered,  and  that  no  assignment 
of  such  judgment  shall  be  made  prior  to  final  disposition  of 
this  suit  either  in  this  court  or  in  the  higher  courts ;  and  I 
further  stipulate  that  when  judgment  is  finally  obtained  the 
money  shall  be  paid  into  the  registry  of  the  court,  there  to 
remain  until  disposed  of  by  the  court  as  follows,  to-wit: 

First.  To  the  payment  of  the  costs. 

Second.  To  the  attorney's  fees  to  be  fixed  by  the  court. 

Tihrd.  The  remainder-  to  the  plaintiff. 

Respectfully, 

R.  X., 
Attorney   for   Plaintiff. 

(1)  A  certificate  of  this  character  is  not  required  by  the  statute  per- 
mitting suits  to  be  prosecuted  by  poor  persons  without  giving  security 
for  costs,  but  is  required  by  rule  of  court  in  some  districts. 


240  SUITS    AT    LAW. 

No.  143. 

Order  to  Sue  in  Forma  Pauperis. 

[Caption.] 

This  cause  coming  on  to  be  heard  upon  the  motion  of  plain- 
tiff to  be  allowed  to  sue  in  forma  pauperis,  came  the  plaintiff 
and  filed  affidavit  in  accordance  with  the  provisions  of  the 
act  of  congress  of  July  1,  1892. 

Whereupon  the  court  being  advised,  it  is  ordered  that  the 
plaintiff  be  allowed  to  prosecute  this  action  in  this  court  with- 
out making  a  deposit  or  executing  bond  for  costs,  because  of 
her  poverty  as  alleged  in  said  affidavit,  and  it  is  ordered  that 
all  judicial  officers  who  have  occasion  to  perform  services 
herein,  sliall  perform  same  as  if  the  deposit  for  costs  or  se- 
curity for  costs  had  been  given,  and  it  is  further  ordered  that 
if  the  plaintiff  recover  judgment  herein  all  costs  for  services 
rendered  by  officers  as  aforesaid  shall  be  paid  and  a  lien  upon 
any  such  judgment  recovered  will  be  given  to  secure  the  pay- 
ment of  all  such  costs  and  fees  due  and  unpaid. 

No.  144. 

Motion  for  Service  by  Publication  (1). 

[Caption.'] 

Now  comes  A.  B.,  and  moves  this  honorable  court  for  an 
order  to  proceed  under  Section  738  of  the  Revised  Statutes 
of  the  United  States  to  obtain  service  upon  C.  D.  and  G.  H. 
by  publication,  on  the  ground  that  the  marshal  returned  the 
subpoena  issued  in  this  cause,  indorsed  "The  defendants,  C. 
D.  and  G.  H.,  are  not  found  in  my  district,"  and  that  per- 
sonal service  is  not  practicable,  the  absent  defendants  being 
inhabitants  of  the  dominion  of  Canada  [or  as  may  be]. 

X.  &  X., 
Attorneys  for  Plaintiff. 

(1)  As  to  when  service  by  publication  is  allowed  in  federal  courts, 
see  Desty's  Fed.  Proc,  Sec.  25,  and  R.  S.,  Sec.  738;  18  Stat.  L.  470, 
1    Supp.    84;    Bradcen    v.    Union    Pac.    Ry.    Co..    56    Fed.    447,    S.    C. 


PROCESS,   MOTIONS,  JUDGMENT,   ETC.  241 

5    C.    C.    A.    548;    Bntt    v.    Procter,    45    Fed.    515;    Beech    v.    Mosgrove, 
16  Fed.  305;  Foster's  Fed.  Frac,  5th  ed.,  Sec.  166,  pp.  591  et  seq. 

State  statutes  providing  for  service  by  publication  do  not  apply 
in  the  federal  courts,  Jennings  v.  Johnson,  148  Fed.  337,  78  C.  C.  A. 
329,  and  the  motion  provided  by  the  statute  (now  Judicial  Code,  Sec. 
57)  is  exclusive,  and  the  requirements  of  this  act  must  be  strictly 
followed.     Ibidem. 

The  "warning  order"  provided  for  in  this  section  need  not  be 
served  upon  a  person  in  possession  of  property  in  the  district  upon 
whom  a  subpoena  has  been  served.  Blake  v.  Foreman  Bros.  Bank- 
ing Co.,  218  Fed.  264;  Ladew  v.  Tenn.  Co  .  218  U.  S.  357.  54  L.  Ed.  1069. 

There  must  be  an  allegation  in  the  petition  or  bill  that  the  prop- 
erty in  question  is  in  the  district.  Jackson  v.  Hooper,  171  Fed.  597; 
Nickane  v.  Burke,  132  Fed.  688. 

Requirements  of  this  section  and  their  application  are  pointed  out 
in  Perez  v.  Fernandez,  220  U.  S.,  224,  55  L.  Ed  443,  where  the  court 
says  (page  231  of  220  U.  S.):  "Plainly,  therefore,  the  previous  pro- 
vision to  which  the  proviso  applies  exacts  an  actual  personal  notice 
resulting  from  the  service  on  the  party  outside  of  the  district  of  an 
order  of  the  court  directed  to  him  and  requiring  him  to  appear  and 
defend  within  a  time  stated,  the  whole  conformably  to  the  express 
terms  of  the  statute.  In  other  words,  where  the  property  is  situated 
in  the  district  where  the  suit  is  brought  as  provided  in  the  statute, 
the  right  of  the  court  to  exert  its  authority  is  made  to  depend  upon 
two  forms  of  notice,  which  are  distinct  one  from  the  other.  First, 
an  actual  notice  calling  upon  the  person  to  appear,  and  which,  in 
virtue  of  an  express  authority  of  the  court,  may  be  served  upon  the 
party  outside  of  the  district  where  the  suit  is  pending.  Second,  a 
notice  by  publication  calling  upon  the  party  to  appear  and  defend 
within  the  statutory  time,  this  latter  notice,  however,  being  only 
necessary  where  the  former  method  can  not  be  employed.  Considering 
the  two  distinct  subjects,  the  proviso  of  the  statute  ordains  that  where 
the  actual  personal  notice  has  not  been  made  as  provided  and  publi- 
cation has  therefore  been  resorted  to,  that  within  a  year  the  party 
has  a  right  to  appear  and  the  case  must  be  reopened  to  permit  him 
to  make  his  defense." 

Under  this  section  non-resident  and  resident  of  the  district  may  be   / 
joined.     Greeley  v.  Lowe,  155  U.  S.  58,  39  L.  Ed.  69. 

An  order  that  "service  of  process  upon  said  A.  B.,  defendant,  be 

made  by   the  marshal   of  the  district  of  the  state  of  ,  and      . 

in  default  thereof,  that  service  be  made  by  publication"  is  defective;      ' 
the   order   must  require  the   defendant   to  "appear,   plead,   answer   or 
demur,  by    a   day   certain    to    be   designated "     Jennings  v.   Johnson, 
supra. 

Service  by  publication  in  case  of  foreign  attachment,  permitted 
by  state  statutes,  is  not  authorized  in  United  States  courts.  Smith 
V.  Reed,  210  Fed.  968,  where  Judge  Day  reviews  the  cases  discrim- 
inatingly. 


242  SUITS    AT    LAW. 

No.  145. 

Affidavit   for   Service   by    Publication    of   non-Resident    De- 
fendants. 

[Caption.] 

In  this  cause  J.  B.  makes  oath  in  due  form  of  law  and 
states  that  he  is  one  of  the  attorneys  for  plaintifif  in  the  above- 
styled  cause;  that  the  Union  Land  Company  and  the  New 
York  Trust  Company,  defendants  to  this  cause  under  the 
amended  declaration,  are  not  inhabitants  of,  nor  found  within 

the district  of ;  that  neither  of  said  defendants  has 

voluntarily  appeared  to  this  action ;  that  the  Union  Land  Com- 
pany has  its  principal  office  and  domicile  in ,  in  the  state 

of ,  and  the  New  York  Trust  Company  has  its  principal 

ofiFxe  and  domicile  in  the  city  of ,  state  of ,  and  that 

neither  of  said  corporations  has  any  office,  agent  or  represen- 
tative within  this  district,  to  the  best  of  affiant's  knowledge 
and  information  and  belief. 

J.  B. 

Sworn  to  and  subscribed  before  me  this day  of , 

A.  D. . 

[Official  signature.] 


No.  146. 

Order  for  Service  by  Publication. 

[Caption.] 

Upon  the  motion  of  X.  &  X.,  counsel  for  A.  B.,  and  it  ap- 
pearing to  the  court  that  the  defendants,  C.  D.  and  G.  H., 
are  not  inhabitants  of,  nor  are  found  within,  this  district,  nor 
have  voluntarily  entered  their  appearance  herein,  and  that 
personal  service  upon  the  said  defendants,  C.  D.  and  G.  H., 
is  not  practicable,  it  is  hereby  ordered  that  said  defendants, 
C.  D.  and  G.^  H.,  appear,  plead,  answer,  or  demur  to  the  said 

bill  filed  by  the  plaintiff  herein,  by  the  day  of  , 

1894,  and  in  default  thereof  that  the  court  will  proceed  to 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  245 

the  hearing  and  adjudication  of  said  suit ;  and  that  this  order 
be  published  in  a  newspaper  of  general  circulation,  to-wit 
[name  the  paper],  once  a  week  for  six  consecutive  weeks. 


No.  147. 

Notice  for  Publication. 

The  district  court  of  the  United  States  for  the district 

of .  A.  B.  vs.  C.  D.,  E.  F.,  and  G.  H.  Whereas,  proceed- 
ings have  been  instituted  by  the  plaintiff  to  subject  certain 
moneys  and  credits  belonging  to  C.  D.,  in  the  possession  and 
under  the  control  of  E.  P.,  to  the  payment  of  a  judgment 
against  said  C.  D.,  as  set  forth  in  the  bill  filed  in  the  above 
cause;  and  in  pursuance  of  an  order  of  said  court  granted  in 
the  above-entitled  cause,  notice  is  hereby  given  to  C.  D.  and 
G.  H.,  defendants,  who  are  not  inhabitants  of  nor  are  found 
within  this  district,  that  they  appear,  plead,  answer,  or  demur 

to  the  bill  of  complaint  filed  by  the  plaintiff  herein,  by  the 

day  of ,  1894,  and  that  in  default  thereof,  the  court  will 

proceed  to  the  hearing  and  adjudication  of  said  suit. 

X.  &  X.,  A.  B., 

Solicitors  for  Plaintiff.  Plaintiff. 


No.  147a. 

Proof  of  Publication. 


State  of , 

County  of ,  ss. 

S.  C,  being  first  duly  sworn,  upon  his  oath  says,  that  he 
is  publisher  of  the  Crossville  Chronicle,  a  weekly  newspaper 
published  in  the  county  and  state  aforesaid ;  that  the  annexed 
and  foregoing  advertisement  was  published  in  said  newspaper 
for  four  (4)  consecutive  weeks;  and  that  the  first  publication 


244  SUITS    AT    LAW. 

of  said  advertisement  was  made  in  the  issue  of  said  news- 
paper on  the day  of . 

S.  C. 

Sworn  to  and  subscribed  before  me  this day  of . 

J.  N., 
Notary  Public  in  and  for County. 


No.  148. 

Order  for  Service  on  non-Resident  Defendants. 

[Caption.] 

Upon  motion  of  plaintiff's  attorney,  it  appearing-  to  the 
court  that  this  is  a  suit  to  enforce  a  claim  to  real  property 
within  this  district,  and  that  defendants,  Union  Land  Com- 
pany, and  New  York  Trust  Company,  are  not  inhabitants  of 
or  found  within  this  district,  and  that  they  have  not  volun- 
tarily appeared  to  this  action ;  it  is  ordered  that  said  defend- 
ants appear,  plead,  answer  or  demur  to  plaintiff's  declaration 

by  the day  of ,  and  in  default  thereof  the  court  will 

proceed  to  the  hearing  and  adjudication  of  said  suit,  and 
that  a  copy  of  this  order  be  served  on  said  defendants  wher- 
ever found. 


No.  149. 

Certified  Copy  of  Order  for  Service  on  non-Resident  Defend- 
ant, and  the  Return  of  Officer  Serving  Same  (1). 

[Caption.] 

Upon  motion  of  plaintiff's  attorney,  it  appearing-  to  the 
court  that  this  is  a  suit  to  enforce  a  claim  to  real  property 
witihn  this  district,  and  that  defendants.  Union  Land  Com- 
pany, and  New  York  Trust  Company,  are  not  inhabitants 
of  or  found  within  this  district,  and  that  they  have  not  volun- 
tarily appeared  to  this  action ;  it  is  ordered  that  said  defend- 
ants appear,  plead,  answer  or  demur  to  plaintiff's  declaration 
by  the day  of ,  and  in  default  thereof  the  court  will 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  245 

proceed  to  the  hearing  and  adjudication  of  said  suit,  and 
that  a  copy  of  this  order  be  served  on  said  defendants  wher- 
ever found. 

United  States  of  America, 
District  of ,  ss. 

I,  T.  J.,  clerk  of  the  circuit  court  of  the  United  States  for 
the  district  aforesaid,  do  hereby  certify  the  above  and  fore- 
going to  be  a  full,  true  and  correct  copy  of  an  order  made  and 

entered  of  record  in  the  above  styled  case  on  the  day 

of . 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  said  court  at  office  in  the  city  of ,  this 

day  of . 

T.  J., 
[Court  Seal.]  Clerk. 

[Officer's  Return.] 

United  States  of  America, 
District  of ,  ss. 

J.  H.,  being  duly  sworn,  on  his  oath  says  that  he  is  a  field 

deputy  marshal  of  the  United  States  for  the district  of 

,  that  he  did  on  the day  of instant  serve  a  copy 

of  the  order  made  and  entered  in  the  within  cause  on  the 

day  of ,  on  the  Union  Land  Company  by  giving  the  same 

to  Edwin  G.  Maturin,  the  secretary  of  said  company  at  its 

office  in in  said  district. 

J.  H., 
Deputy  U.  S.  Marshal. 

(1)  This  order  is  served  by  the  marshal  for  the  district  within 
■which  the  non-resident  defendant  resides  and  not  by  the  marshal  for 
the  district  within  which  the  suit  is  brought. 


246  SUITS    AT    LAW. 

No.  150. 

Appearance. 

[Caption.] 
To  the  Clerk  of  said  Court : 

Please  enter  my  appearance  as  attorney  for  the  defendant  in 
the  above  entitled  cause.  R.  Y., 

Dated  .  Attorney  for  Defendant. 


No.  151. 

Appearance  for  Special  Pleading. 
[Caption.] 

Now  comes  the  defendant,  by  his  counsel,  and  enters  his 
appearance  herein  for  the  purpose  of  pleading  to  the  jurisdic- 
tion of  this  court  [or  as  may  he]  and  for  no  other  purpose. 

Y.  &  Y. 
Dated .  Attorneys  for  Defendant. 

No.  152. 

Appearance  by  Defendant  in  Person  (1). 

I  promise  to  appear  at  the  return  of  the  within  writ,  and 
pray  the  court  to  enter  my  appearance  accordingly. 

C.  D., 
Dated .  Defendant. 

(1)  This  appearance  is  usually  indorsed  on  the  writ. 


No.  153. 

Order  Substituting  Attorneys  (1). 

[Caption.] 

It  appearing  to  the  court  that  Y.  &  Y.  have  ceased  to  be 
attorneys  for  the  defendant  in  this  cause,  and  that  Messrs. 
Z.  &  Z.  have  been  retained  for  and  on  behalf  of  said  defend- 
ants. It  is  ordered  that  the  said  Z.  &  Z.  be  and  they  hereby 
are  substituted  on  the  record  as  attorneys  for  said  defendant. 

(1)  As  to  the  right  of  attorneys  to  withdraw  appearance  without 
leave   of   court,   see  U.   S.   v.    Curry,   6   How.   106,  111;    Creighton   v. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  247 

Kerr,  20   Wall.  8,   13;   Rio   Grande   Irrigation   Co.   v.   Gildersleeve,   174 
U.  S.  603,  606. 

Client  during  suit  may  dismiss  his  attorney  without  assigning  a 
reason,  and  the  court  will  issue  such  order  as  to  substitution  as  will 
protect  the  discarded  attorney.  Everett  v.  Alpha  Portland  Cement 
Co.,  225  Fed.  931,  141  C.  C.  A.  55.  Especially  in  the  case  where  the 
attorney  has  an  agreement  for  a  contingent  fee.  DuBois  v.  City  of 
N.  Y.,  134  Fed.  570,  69  C.  C.  A.  112;  see  also  Silverman  v.  Penna.  R.  Co., 
141  Fed.  382;  N.  Y.  Phonograph  Co.  v.  Edison,  148  Fed.  397,  150 
Fed.  233. 


No.  154. 

Order  of  Substitution  of  Attorneys,  and  Consent  Thereto. 

[Caption.] 

On  reading  and  filing  the  annexed  consent  of  the  plaintiff, 
and  of  Charles  Goldzier,  his  attorney,  and  on  motion  of  Baltrus 
S.  Yankaus,  attorney,  it  is: 

Ordered,  that  Baltrus  S.  Yankaus,  attorney  and  counselor 
at  law  of  New  York  City,  be  and  hereby  is  substituted  in  place 
of  Charles  Goldzier,  as  attorney  for  the  plaintiff  in  the  above 
entitled  action. 

Van  Vechten  Veeder, 

U.  S.  D.  J. 

We  hereby  consent  that  Baltrus  S.  Yankaus,  attorney  and 
counselor  at  law,  of  New  York  City,  be  substituted  in  the 
place  and  stead  of  the  undersigned  Charles  Goldzier,  as  at- 
torney for  the  plaintiff  in  the  above  entitled  action,  and  that 
an  order  to  that  effect  may  be  entered  without  further  notice. 
Dated,  New  York,  June  18,  1913. 

his 
Matt    X     Yurkonis, 
mark 

Plaintiff. 
Charles  Goldzier, 

Attorney  for  Plaintiff. 
Baltrus  S.  Yankaus, 
Attorney  and  Counselor  at  Law. 


248  SUITS    AT    LAW. 

No.  155. 

Motion  by  Receivers  to  Quash  Service  of  Summons. 

[Caption.] 

Now  come  the  defendants  herein,  K.  C.  and  G.  M.,  named 
in  the  petition  in  this  case  as  receivers  of  the  C.  &  D.  Railroad 
Company,  and  entering  a  special  appearance  for  the  purpose 
of  this  motion  and  for  no  other  purpose  whatever,  they  here 
show  to  the  court  that  they  were  discharged  as  such  receivers 

on  the day  of ,  and  that  since  that  time  they  have 

not  been  in  the  possession  of  any  property  of  the  C.  &  D. 
Railroad  Company  as  such  receivers,  and  have  not  since  that 

date  had  any  agent  in  the  state  of ;  and  they,  therefore, 

show  that  F.  S.,  upon  whom  this  writ  was  served,  was  not  at 
the  time  of  such  service  and  has  not  been  since  that  date,  their 
agent  for  any  purpose  whatever,  and  they,  therefore  move  to 
quash  the  summons  issued  in  this  case  and  the  service  thereof, 
for  said  reason  and  for  the  further  reason  that  no  sufificient 
service  of  said  summons  was  made  upon  these  defendants. 

R.  X., 
Attorney  for  Receivers. 

This  motion  was  sustained  in  B.  &  O.  R.  Co.  v.  Freeman,  112  Fed. 
Rep.  237. 


No.  156. 

Notice  to  Plead. 

[Caption.] 

Y.  &  Y., 

Attorneys  for  Defendant. 

Please  take  notice  that  a  rule  has  been  entered  in  this  cause 

with  the  clerk  of  this  court,  at  his  office  in  the  city  of , 

requiring  the  defendant  to  plead  to  the  petition  [or,  declara- 
tion, etc.]  filed  in  this  cause  within  twenty  days  after  service 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  249 

of  a  copy  thereof,  with  which  you  are  herevy  served,  and 
notice  of  rule  or  judgnnent.  X.  &  X., 

Dated  at .  Attorneys  for  Plaintiff. 

Service  accepted  this  day  of ,  1894. 

Y.  &  Y., 
Attorneys  for  Defendant. 


No.  157. 

Notice  to  Declare. 
[Caption.] 

X.  &  X., 

Attorneys  for  Plaintiff. 

Please  take  notice  that  the  plaintiff  in  this  cause  is  hereby 

required  to  declare  within days  after  the  service  of  this 

notice,  or  that  judgment  of  discontinuance  will  be  entered 
against  him.  Y.  &  Y., 

Dated .  Attorneys  for  Defendant. 

Service  accepted,  etc. 


No.  158. 

Notice  of  Motion  for  Leave  to  Amend  (1). 

[Caption.] 

Y.  &  Y., 

Attorneys  for  Defendant  [or.  Plaintiff]. 

Please  take  notice  that  we  shall  make  a  motion  before  the 

judge  of  the  district  court  of  the  United  States  for  the  

district  of ,  on  the day  of ,  1894,  at  ten  o'clock 

in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard, 
that  the  plaintiff  [or,  defendant]  in  this  cause  have  leave  to 
amend  the  declaration  [or,  answer,  or,  etc.]  filed  herein,  on 
such  terms  as  the  said  court  may  direct;  a  copy  of  which 


250  SUITS    AT    LAW. 

amendment  and  affidavits  in  support  thereof,  which  will  be 
presented  to  the  court  at  such  hearing,  are  herewith  served 
upon  you.  X.  &  X., 

Attorneys  for  Plaintiff  [or,  Defendant.] 

Dated  . 

Service  accepted,  etc. 

(1)  The  trial  court  in  its  sound  discretion  may  allow  a  new  cause 
of  action  to  be  set  up  by  amendment  of  the  complaint,  Thompson  v. 
Cayser,  243  U.  S.  66,  61  L.  Ed.  597,  and  where  the  amendment  does 
not  set  out  a  new  cause  of  action,  complaint  may  be  amended  after 
close  of  testimony  and  dispersal  of  witnesses,  where  evidence  thereof 
was  received  without  objection  and  principally  from  defendant's  wit- 
nesses. Western  Coal,  etc.,  Co.  v.  McCallum,  237  Fed.  1003,  151 
C.  C.  A.  65. 

It  is  within  the  discretion  of  a  trial  court,  after  the  conclusion  of 
the  testimony,  to  permit  an  amendment  to  the  answer  to  set  up  addi- 
ional  defenses  to  meet  the  evidence.  Ames  v.  Sullivan,  235  Fed.  880, 
149  C.  C.  A.  192. 

Liberal  provision  for  permitting  amendment  of  pleadings  is  con- 
tained in  R.  S.  U,  S.,  Sec.  954,  and  "this  statute  grants  the  fullest 
power  and  discretion  as  to  amendments  to  every  federal  court."  In  re 
Glass,  119  Fed.  509. 

Where  the  suit  has  been  brought  on  the  wrong  side  of  the  court, 
amendments  may  be  made  to  the  pleadings  by  order  or  as  a  matter 
of  right,  to  make  them  conform  to  the  proper  practice.  Judicial  Code, 
Sec.  274a,  and  Webb  v.  Sou.  Ry.  Co.,  235  Fed.  578. 

After  judgment,  while  the  case  was  still  in  the  jurisdiction  of 
the  trial  court,  plaintiff  filed  a  motion  to  amend  the  original  and 
first  amended  petition  by  inserting  therein  the  following:  "And  is  a 
citizen  of  said  state  and  of  the  United  States  of  America;"  such 
motion  was  allowable  in  view  of  R.  S.  U.  S.,  Sec.  954,  which  will  govern 
even  where  state  statute  forbids.  Mexican  Central  Ry.  Co.  v.  Duthie, 
189  U.  S.  76,  47  L.  Ed.  715. 


No.  159. 

Demand  of  Oyer. 

[Caption.] 
Y.  &  Y., 

Attorneys  for  Defendant  [or,  Plaintiff]. 
The  plaintiff   [or,  defendant]    demands  oyer  and  copy  of 
contract  mentioned  in  defendant's  answer  in  this  cause   [or 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  251 

Specify  the  document  desired,  and  the  pleading , in  which  it  is 
mentioned].  X.  &  X., 

Attorneys  for  Plaintiff  [or.  Defendant]. 

Dated  . 

Service  accepted,  etc. 


No.  160. 

Notice  to  Reply. 

[Caption.] 

X.  &  X., 

Attorneys  for  Plaintiff. 

Please  take  notice  that  the  plaintiff  in  this  cause  is  hereby 
required  to  reply  to  the  plea  [or,  pleas]  filed  herein,  with  a 

copy  of  which  you  are  hereby  served,  within days  after 

service  of  a  copy  thereof,  and  of  this  notice,  or  judgment  will 
be  entered  against  him.  X.  &  X., 

Attorneys  for  Defendant. 

Dated . 

Service  accepted,  etc. 


No.  161. 

Notice  of  Trial. 

[Caption.] 

Y.  &  Y., 

Attorneys  for  Defendant  [or,  Plaintiff]. 

Please  take  notice  that  the  above  cause  will  be  brought  to 
trial  at  the  next  term  of  the  district  court  of  the  United  States 

for  the district  of ,  to  be  held  at  the  United  States 

court-rooms  in  the  city  of ,  before  the  judge  of  said  court 

on  the  day  of  ,  at  ten  o'clock  in  the  forenoon  of 

that  day.  X.  &  X., 

Attorneys  for  Plaintiff  [or,  Defendant]. 

Dated . 

Service  accepted,  etc. 


252  SUITS  AT  law- 

No.  162. 
Subpoena  of  Witness  to  Testify  before  a  Commissioner. 
See  form  under  title  "Criminal  Proceedings." 


No.  163. 

Habeas  Corpus  ad  Testificandum. 

For  form  of  affidavit  and  writ  see  forms  under  title  "Crimi- 
nal Proceedings." 


No.  164. 

Order  Overruling  Motions  to  Make  Complaint  More  Specific 
and  to  Strike  Portions  Thereof,  etc. 

[Caption.] 

At  this  day  comes  the  plaintiff,  by  George  O.  Marrs,  Es- 
quire, his  attorney,  and  the  defendant,  by  John  Q.  Dier,  Es- 
quire, its  attorney,  also  comes,  and  the  several  motions  of  the 
defendant  to  require  the  plaintiff  to  make  his  complaint  more 
specific  and  to  strike  out  certain  portions  of  the  complaint, 
coming  on  now  to  be  heard,  are  argued  by  counsel,  and  the 
court  having  considered  the  same,  and  being  now  fully  advised 
in  the  premises, 

It  is  ordered  by  the  court,  for  good  and  sufficient  reasons  to 
the  court  appearing,  that  the  said  motions  be,  and  the  same 
and  each  thereof,  are  hereby  denied. 

It  is  further  ordered  by  the  court  that  the  defendant  answer 
the  complaint  herein  within  twenty  (20)  days  from  this  day. 
To  which  ruling  of  the  court  in  denying  said  motion  of  the 
defendant  to  require  the  plaintiff  to  make  said  complaint  more 
specific,  and  said  motion  to  require  plaintiff  to  strike  certain 
portions  thereof  therefrom,  the  defendant,  by  its  counsel,  then 
and  there  duly  excepted. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  253 

No.  165. 

Motion  of  Defendant  to  Make  Complaint  More  Specific. 

[Caption.] 

Comes  now  the  defendant  above  named,  by  Hughes  &  Dor- 
sey,  John  O.  Dier  and  Henry  \V.  Toll,  and  moves  the  court 
that  an  order  be  entered  herein  requiring  the  plaintiff  to  make 
his  complaint  theretofore  filed  herein  more  specific  in  the  follow- 
ing respects : 

1.  By  stating  more  definitely  what  servant  and  employe  of 
the  defendant  is  referred  to  in  paragraph  (a)  of  section  IV  of 
said  complaint,  by  stating  the  position  which  said  servant  or 
employe  occupied  and  the  nature  of  his  employment. 

2.  By  furnishing  a  bill  of  particulars  setting  forth  definitely 
the  services  of  physicians  and  nurses  engaged  and  rendered  as 
alleged  in  section  V  of  said  complaint,  and  by  specifying  the 
exact  amounts  expended  by  the  plaintiff  in  each  instance  for 
such  services. 

3.  By  stating  specifically  what  portion  of  the  attempted  re- 
covery of  $36,000  is  sought  on  account  of:  (1)  Physical  suffer- 
ing sustained  prior  to  the  commencement  of  this  action;  (2) 
anticipated  physical  suffering;  (3)  mental  suffering;  (4)  loss 
of  earnings  sustained  prior  to  the  commencement  of  this  ac- 
tion; (5)  anticipated  loss  of  earnings. 

Hughes  &  Dorsey, 
John  0.  Dier, 
Henry  W.  Toll, 
Attorneys  for  Defendant. 


No.  166. 

Motion  of  Defendant  to  Strike  Portions  of  Complaint. 

[Caption.] 

Comes  now  the  defendant  above  named,  by  Hughes  &  Dor- 
sey,  John  Q.  Dier  and  Henry  W.  Toll,  and  moves  the  court 
that  an  order  be  entered  herein  requiring  the  plaintiff  to  strike 


254  SUITS   AT   LAW 

the  following  portions  of  the  complaint  heretofore  filed  herein, 
for  the  respective  reasons  hereinafter  stated  : 

1.  That  portion  of  section  II  of  said  complaint  reading  as 
follows : 

"Having  its  principal  office  in  said  state  of  Utah  and  is  a 
citizen  of  said  state  of  Utah  and  at  all  the  times  hereinafter 
mentioned  was  and  now  is  doing  business  in  the  state  of  Colo- 
rado under  the  laws  of  said  state,  and  at  all  the  times  herein- 
after mentioned,  the  defendant  was  a  common  carrier  of  freight 
and  passengers  for  hire  .  .  ." 
for  the  reason  that  the  same  is  irrelevant. 

Hughes  &  Dorse y, 
John  Q.  Dier, 
Henry  W.  Toll, 
Attorneys  for  Defendant. 


No.  167. 

Motion  for  Leave  to  Amend  Complaint  after  Verdict. 

[Caption.] 

And  thereafter,  and  on,  to-wit,  said  29th  day  of  August, 
1916,  the  plaintifif  presented  to  the  court  his  motion  to  amend 
the  complaint  herein,  which  said  motion  is  in  words  and  figures 
following,  to-wit : 

Now  on  this  day  comes  the  plaintiff  and  moves  the  court  to 
enter  an  order  permitting  the  plaintiff  to  amend  his  complaint 
by  adding  thereto  the  following  paragraph  on  page  4  of  said 
complaint,  at  the  end  of  paragraph  IV : 

"(f)  The  defendant  negligently  failed  to  use  reasonable 
care  to  maintain  a  reasonably  safe  place  for  plaintiff  to  per- 
form his  work." 

on  the  ground  that  said  amendment  will  render  said  complaint 
conformable  to  the  evidence,  the  instructions  and  the  verdict 
herein.  A.  B.  and  C.  D., 

Attorneys  for  Plaintii¥. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  255 

No.  168. 

(Another  form.) 
Motion  to  Make  Petition  Definite  and  Certain. 

Said  defendant,  the  C.  D.  Kailroad  Company,  moves  the 
court  for  its  order  requiring  said  plaintiff  to  make  his  petition 
more  definite  and  certain  in  the  following  particulars,  to-wit: 

First.  That  he  be  required  to  definitely  state  and  specifically 
•iet  forth  what,  if  any,  injury  other  than  the  loss  of  his  right 
arm,  he  sustained  by  reason  of  the  accident  in  his  petition 
alleged. 

Second.  That  he  be  reciuired  to  definitely  state  and  specif- 
ically set  forth  what  said  plaintiff  means  by,  and  to  what  in- 
juries is  referred  in  the  allegation  contained  in  the  next  to  the 
last  paragraph  of  said  petition,  to-wit :  "That  the  plaintiff  was 
at  the  same  time  otherwise  severely  cut,  bruised  and  injured." 

The  C.  &  D.  Railroad  Company. 

By  R.  Y.,  its  Attorney. 


No.  169. 

Order  Granting  Motion  to  Make  Petition  More  Definite  and 

Certain. 

[Caption.] 

This  day  came  the  parties,  and  the  court  being  fully  advised 
herein,  sustains  the  motion  of  the  defendant  to  make  the  peti- 
tion definite  and  certain.  And  on  motion  of  the  defendant  it 
is  further  ordered  that  the  plaintiff  have  two  weeks  in  which 
to  file  his  amended  petition  herein. 


No.  170.  ^ 

Order  Allowing  Amendment  to  Count  in  Declaration. 

[Caption.] 

In  this  cause  came  the  plaintiff,  by  attorney,  and  it  appear- 
ing upon  motion  to  the  court  for  satisfactory  reasons  that  leave 
to  amend  the  third  count  of  plaintiff's  declaration  filed  in  the 


256  SUITS  AT  LAW 

above  entitled  cause  should  be  granted,  the  demurrer  of  the 
Northern  Railway  Company  thereto,  having  been  heretofore 
sustained.  It  is  therefore  ordered  by  the  court  that  leave  be 
granted  the  plaintiff  to  file  an  amended  count  in  lieu  of  said 
third  count  to  which  the  demurrer  of  said  defendant  was  sus- 
tained. Said  amended  count  having  remedied  defects  in  the 
said  third  count  of  plaintiff's  declaration  shall  stand  in  lieu  of 
said  third  count. 


No.  171. 

Order  Granting  Leave  to  Plead. 

[Caption.] 

In  this  cause  leave  is  granted  to  the  defendant  to  plead  in 
fifteen  days  from  this  date. 


No.  172. 

Affidavit  to  Withdraw  a  Plea  in  Bar. 

State  of  , 

County  of  ,  ss. 

Personally  appeared  before  me  R.  A.,  clerk  of  the  district 

court  of  county,  the  within  named  affiant,  J.   B.,  who 

makes  oath  in  due  form  of  law  that  he  is  the  attorney  for  the 
Northern  Railway  Company,  and  as  grounds  for  asking  to 
withdraw  the  plea  in  bar  heretofore  filed  in  this  cause  says 
that  since  the  filing  of  said  plea  in  bar  the  defendant,  Northern 
Railway  Company,  has  come  into  the  possession  of  facts  which 
it  heretofore  had  not  the  means  of  knowing  and  which  will 
operate  to  its  prejudice  if  not  allowed  to  file  another  form  of 
plea  embracing  these  facts.  G.  P., 

Attorney  N.  R.  R. 

Sworn  to  and  subscribed  before  me  this  day  of . 

R.  A., 
Clerk  of  the  District  Court  for  the 
District  of  . 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  257 

No.  173. 

Motion  to  Strike  out  Pleas. 

[Caption.] 

First.  Plaintiff  by  counsel  moves  to  strike  out  defendant's 
second  plea  and  for  cause  thereof  says :  Said  plea  presents  no 
valid  defense  to  the  action  brought  and  the  same  is  therefore 
irrelevant  and|immaterial  and  if  the  facts  pleaded  in  said  plea 
were  true  it  would  not  defeat  plaintiff's  action. 

Second.  Plaintiff  by  counsel  moves  to  strike  out  defendant's 
third  plea  and  for  cause  thereof  says :  Said  plea  presents  no 
valid  defense  to  the  action  brought  and  the  same  is  therefore 
irrelevant  and  immaterial  and  if  the  facts  pleaded  in  said  plea 
were  true  it  would  not  defeat  plaintiff's  action. 

Third.  Plaintiff  by  counsel  moves  to  strike  out  defendant's 
fourth  plea  and  for  cause  thereof  says :  Said  plea  presents  no 
valid  defense  to  the  action  brought  and  is  therefore  irrelevant 
and  immaterial  and  if  the  facts  pleaded  in  said  plea  were  true 
it  would  not  defeat  plaintiff's  actioQ.  X.  &  X., 

Attorneys  for  Plaintiffs. 


No.  174. 

Order  Allowing  Amendment  to  Plea. 

[Caption.] 

The  defendant  this  day  moved  the  court  for  leave  to  file  an 
amended  plea,  setting  up  as  a  defense  that  the  policy  sued  on  is 
void  by  reason  of  the  procurement  of  additional  insurance  from 
the  B.  D.  Fire  Insurance  Company,  the  plea  being  presented 
in  open  court. 

Upon  consideration  thereof  it  is  ordered  that  the  motion  be 
allowed  and  the  amendment  be  filed,  and  thereupon  it  was  filed. 


No.  175. 

Order  Allowing  Amendment  (Plea  of  Statute  of  Limitations) 
and  Striking  Same  from  Files. 

[Caption.] 

Defendant,  by  leave  of  the  court  first  had  and  obtained,  filed 
a  further  plea  that  the  suit  of  plaintiff  as  such  administrator 


258  SUITS   AT  LAW 

with  the  will  annexed  was  barred  by  the  terms  of  the  policy, 
which  plea  plaintiff  moved  to  strike  out,  which  motion  the 
court  was  pleased  to  allow  and  said  plea  was  accordingly  struck 
out  as  being  insufficient  in  law,  to  which  action  of  the  court 
the  defendant  then  and  there  excepted. 


No.  176. 

Writ  of  Venire  for  Jury  (1). 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  ITnited  States  of  America  to  the  Marshal 

of  the District  of ,  Greeting : 

We  command  you  to  summon,  without  delay  [here  state  the 
names  and  addresses  of  all  the  jurors],  to  be  and  appear  before 
our  district  court  of  the  United  States,  within  and  for  the  dis- 
trict aforesaid,  at  the  court-rooms  in  the  city  of ,  on  the 

' day  of  ,  1894,  at  10  o'clock  a.  m.,  then  and  there 

to  serve  as  petit  [or,  grand]  jurors  for  and  during  the  


term,  1894,  of  said  court,  and  not  depart  the  court  without 
the  leave  thereof. 

Hereof  fail  not,  and  have  then  and  there  this  writ,  with 
your  proceedings  thereon. 

[Add  teste  according  to  the  court  issuing  the  zvrit.] 

(1)  The  Judicial  Code,  Sees.  275  to  288. 

A  fundamental  discussion  may  be  seen  in  U.  S.  v.  Reed,  2  Blatch. 
435,  Fed.   Cas.   No.   16134. 

That  a  grand  jury  is  in  existence  until  formally  discharged.  U.  S. 
V.  Phil.,  etc.,  Ry.,  227  Fed.  206. 


No.  177. 

Order  Impanelling  Jury  and  Trial  Begun, 

[Caption.] 

This  day  came  the  parties  herein,  by  their  attorneys;  also 
came  the  following  named  persons  as  jurors,  to-wit :  [naming 


PROCESS,   MOTIONS,  JUDGMENT,  ETC.  259 

them],  who  were  duly  impaneled  and  sworn  according  to  law; 
and  thereupon  the  case  came  on  for  hearing  on  the  pleadings 
and  evidence.  And  said  jury  having  heard  the  testimony  ad- 
duced in  part,  and  the  hour  of  adjournment  having  arrived, 
the  further  hearing  of  said  cause  was  postponed  until  to-mor- 
row morning  at  9  :30  o'clock. 


No.  178. 
Order  Discharging  Jury  until  Future  Day. 

[Caption.] 

This  day  again  came  the  said  parties,  by  their  attorneys,  and 
also  came  the  jury  heretofore  impaneled  and  sworn,  and  the 
trial  proceeded.  And  the  said  jury  having  heard  the  remain- 
ing testimony,  the  argument  and  charge  of  the  court,  retired 
to  their  room  in  charge  of  a  sworn  officer,  for  deliberation. 
And  said  jury  not  having  agreed  upon  a  verdict,  and  the  hour 
of  adjournment  having  arrived,  the  court  discharged  said  jury 
until  to-morrow  morning  at  9:30  o'clock. 


No.  179. 

Order  for  Trial  by  Eleven  Jiu-ors. 

[Caption.] 

This  cause  coming  on  for  trial,  and  the  jury  herein  having 
been  duly  impaneled  and  sworn,  one  of  the  jurors  herein,  to- 
wit:  John  B.  Batlin,  being  taken  ill,  and  declaring  himself 
unable  to  proceed  with  the  hearing  of  said  case,  came  the  par- 
ties plaintiff  and  defendant,  by  their  respective  attorneys,  and 
consented  that  said  juror  might  be  excused.  Whereupon  the 
court  being  advised,  orders  that  said  juror  be  excused  from 
further  services  herein.  Came  again  the  parties  plaintiff  and 
defendant,  by  their  respective  attorneys  as  aforesaid,  and  now 
consent  to  a  trial  of  this  case  with  eleven  jurors  as  a  full  panel. 


260  SUITS  AT  LAW 

No.  180. 

Stipulation  Waving  Jury  (1). 
[Caption.] 

We.  the  attorneys  for  the  respective  parties,  hereby  waive 
the  trial  to  the  jury  of  this  cause,  and  agree  to  submit  the  same 
to  the  court,  without  the  intervention  of  a  jury. 

R.  X., 
Attorney  for  Plaintiff. 
R.  Y., 
Attorney  for  Defendant. 

(1)  Constitutional  right  of  trial  by  jury  may  be  waived,  by  writ- 
ing or  orally,  or  by  common  consent,  or  by  acquiescence.  Hawkins 
V.  Bleak) ey,  220  Fed.  378,  381. 

U.  S.  R.  S.,  Sees.  649  and  700,  prescribe  a  stipulation  in  writing 
filed  with  the  clerk.  Citizens'  Bank  v.  Farwell,  56  Fed.  570, 
6  C.  C.  A.  24;  Supervisors  v.  Kennicott,  103  U.  S.  554-556. 

Where  jury  has  been  waived  and  the  court  has  made  a  finding 
and  rendered  judgment  thereon,  review  lies  by  writ  of  error.  Porter 
v.  Davies,  223  Fed.  465,  140  C.  C.  A.  11.  Where  jury  has  been  waived 
on  the  first  trial  but  judgment  was  reversed,  the  parties  are  not 
bound  by  the  former  waiver  on  the  second  trial.  Davies  v.  Porter, 
248  Fed.  397,  160  C.  C.  A.  407,  and  Burnham  v.  N.  Chi.  St.  Ry.  Co., 
88  Fed.  627. 

Under  R.  S.,  Sec.  700,  the  reviewing  court  will  not  notice  the  facts 
found  unless  the  stipulation  of  waiver  is  in  writing.  Abraham  v. 
Levy,  72  Fed.  124.  On  review  the  record  must  show  that 
the  stipulation  was  made  in  writing.  Bond  v.  Dustin,  112  U.  S.  604, 
and  some  recitals  in  a  record  which  are  insufficient  to  show  this  are 
seen  in  Rush  v.  Newman,  58  Fed.  158. 

R.  S.,  Sec.  649,  confers  authority  upon  the  circuit  court,  and  Judicial 
Code,  Sec.  291,  confers  the  circuit  court  powers  upon  the  district 
court;  hence  R.  S.,  Sees.  649  and  700,  apply  to  the  present  district 
courts. 


No.  181. 

Oath  of  Jury  on  Voir  Dire. 

You  and  each  of  you  do  solemnly  swear  [or,  affirm]  that 
you  shall  full,  true  and  perfect  answers  give  to  such  questions 
as  shall  be  put  to  you  touching  your  competency  to  sit  as  jurors 
in  this  case. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  261 

No.  182. 

Oath  of  Witness. 

You  solemnly  swear  that  your  testimony  in  this  cause  shall 
be  the  truth,  the  whole  truth  and  nothing  but  the  truth  as  you 
shall  answer  unto  God. 


No.  183. 

Affirmation  of  Witness. 

You  do  solemnly  declare  and  affirm  that  your  testimony  in 
this  cause  shall  be  the  truth,  the  whole  truth  and  nothing  but 
the  truth  and  this  you  do  under  the  pains  and  penalties  of 
perjury. 


No.  184. 

Motion  to  Dissolve  Attachment  and  Vacate  Bond. 

[Caption.] 

Now  comes  the  said  defendant,  C.  D..  and  moves  the  court 
to  dissolve  the  attachment  hereinbefore  issued  in  this  cause 
and  to  vacate  and  hold  for  naught  the  bond  given  to  release 
the  property  held  under  said  attachment,  and  to  restore  the 
said  defendant  to  all  things  it  may  have  lost  by  reason  of  said 
attachment,  because : 

First.  Said  defendant  was  not  at  the  time  said  attachment 
was  issued,  subject  to  attachment  under  the  laws  of  the  state 
of . 

Second.  The  said  plaintiff  had  no  authority  in  law  to  have 
said  attachment  issued. 

Third.  Said  attachment  was  illegal,  and  therefore  void. 

R.  Y., 
Attorney  for  the  Defendant. 


262  SUITS  AT  LAW 

No.  185. 

Motion  to  Transfer  Suit  from  One  Division  to  Another  Di- 
vision of  the  Same  District  (1). 

In  the  United  States  District  Court  of  the  District  of 

,  Eastern  Division. 

A.  B.,  Plaintiff,  ^ 

vs.  >    Motion. 

Defendants.  ) 

Now  comes  the  plaintiff  herein,  and  moves  the  court  for  an 
order  transferring  this  case  for  trial  to.  the  district  court  of 
the  United  States  for  the district  of ,  and  the  west- 
ern division  thereof,  for  the  reason  that  said  case  was  im- 
properly removed  to  said  court  of  the  eastern  division  of  said 
district  of . 

Plaintiff  says  that  the  eastern  division  of  the  district 

of is  not  the  proper  court  in  which  to  try  said  case  for 

the  following  reasons,  to-wit : 

First.  That  said  cause  was  originally  brought  in  the  com- 
mon pleas  court  of county, ,  which  county  is  situated 

within  the  western  division  of  the  said district  of . 

Second.  That  the  receivers  of  said  railroad  company,  the 
defendants  herein,  maintain  and  operate  the  principal  and  gen- 
eral offices  of  said  railroad  in , county, ,  being 

in  the  western  division  of  the district  of . 

Third.   That  the  plaintiff  herein  is  a  resident  of .  

county. ,  in  the division  of  said district  of . 

and  was  appointed  administratrix  by  the  probate  court  of  said 
county  of and  state  of . 

Fourth.  That  the  occurrences  complained  of  in  plaintiff's 
petition  filed  in  said  case,  all  happened  and  occurred  in  tine 

said  city  of , county, ,  and  that  all  the  witnesses 

for  plaintiff  and  defendant  reside  in  said  city  of  — — .  in  the 

western  division  of  the district  of . 

A.  B., 
By  X.  &  X.,  Her  Attorneys. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  263 


State  of  , 

County  of  ,  ss. 

W.  F.,  being  first  duly  sworn,  says  that  he  is  one  of  the 
attorneys  for  the  plaintiff  in  the  above  entitled  action,  that  said 
plaintiff  is  at  the  present  time  absent  from  said  county,  and 
for  that  reason  affiant  makes  oath  and  says  that  the  allegations 
and  statements  contained  in  the  foregoing  motion  are  true  as 
he  verily  believes.  W.  F. 

Sworn  to  before  me  and  signed  in  my  presence,  this  

day  of ,  A.  D. . 

[Seal.]                                                                             J.  N. 
Notary  Public  in  and  for County, . 

(1)  See  Barrett  v.  U.  S.,  169  U.  S.  231;  Rosecrans  v.  U.  S.,  165 
U.  S.  — . 


No.  186. 

Order  Transferring  Suit  to  Another  Division  in  the  Same 

District  (1). 
[Caption.] 

This  cause  coming  on  to  be  heard  upon  the  motion  of  the 
plaintiff  herein  for  an  order  transferring  and  removing  this 
cause  for  trial  to  the  western  division  of  the  district  court  of 

the  United  States,  for  the district  of ,  and  all  parties 

consenting  thereto,  the  court  finds  that  said  motion  should  be 
granted,  and  that  this  action  should  have  been  removed  to  said 

district  court  within  and  for  the  western  division  of  the 

district  of . 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court 
that  this  action  be,  and  the  same  is  hereby  transferred  for 
further  proceedings  and  trial  to  the  district  court  of  the  United 

States  for  the  western  division  of  the  district  of , 

and  that  the  same  stand  for  trial  in  said  court  at  the  next  term 
thereof,  and  the  clerk  of  this  court   is  hereby  ordered  and 


264  SUITS  AT  LAW 

directed  to  transfer  all  papers  and  records  filed  herein  to  the 
said  district  court  of  the  United  States,  for  the  western  division 
of  the district  of . 

(1)  See  Barrett  v.  U.  S.,  169  U.  S.  231. 


No.  187. 

Order  Transferring  Cause  to  Another  Place  in  Same  Dis- 
trict (1). 
[Caption.] 

By  consent  of  parties,  it  is  ordered  that  these  causes  be  trans- 
ferred from  this  court  at  Roaonke  to  this  court  at  Lynchburg, 
The  deputy  clerk  at  Roanoke  will  transmit  the  papers  in  these 
causes  together  with  a  copy  of  this  order  to  the  clerk  of  this 
court  at  Lynchburg.  H.  C.  M., 

D.  J. 

(1)  The  Judicial  Code,  Sec.  58,  authorizes  a  transfer  to  another 
division  upon  stipulation  of  parties  and  written  order  of  the  judge; 
Section  53  has  similar  provisions  respecting  the  transfer  of  a  criminal 
proceeding. 

Where  a  district  is  not  made  into  divisions  the  court  may,  even 
over  objection  of  a  party,  transfer  a  criminal  case  to  another  place 
in  the  district,  under  the  power  resident  in  the  court  at  common 
law,  and  the  reasoning  of  the  court  seems  applicable  to  a  civil  case 
in  the  same  situation.    U.  S.  v.  Sutherland,  214  Fed.  320. 


No.  188. 
Motion  to  Transfer  to  Equity  Docket  (1). 

[Caption.] 

Now  comes  defendant  and  shows  to  the  court  that  the  alleged 
cause  of  action  of  plaintiffs  as  set  out  in  their  petition  filed 
herein  is  cognizable  only  in  a  court  of  equity,  and  that  the 
same  is  improperly  on  the  law  docket  of  this  court. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  265 

Wherefore,  defendant  prays  that  this  cause  be  transftiTfd 
to  the  equity  docket  of  this  court,  and  the  plaintiffs  be  required 
to  replead  in  accordance  with  the  rules  in  equity,  and  that  the 
same  be  tried  in  accordance  with  the  practice  in  equity. 

A.  B.  and  C.  D., 
Attorneys  for  Defendant. 

(1)  Judicial   Code,  Sec.  274a,  and  Equity  Rule  22. 

Prior  to  enactment  of  Section  274a  it  was  held  that  by  agreement 
of  parties  the  court  could  transfer  to  the  equity  side  an  action  at 
law  which  should  have  been  brought  in  equity,  instead  of  requiring 
a  dismissal  thereof.     U.  S.  v.  Wells,  203  Fed.   146. 

That  the  courts  are  inclined  to  regard  this  section  as  authority 
for  transferring  from  the  equity  docket  to  the  law  docket  and  vice 
versa,  and  for  amending  the  pleadings  appropriately,  seems  clear  from 
the  cases.  Webb  v.  Sou.  Ry.  Co.,  235  Fed.  578;  Natl.  Surety  Co.  v. 
U.  S.,  228  Fed.  577,  143  C.  C.  A.  99;  John  A.  Roebling  Sons  v.  Kinni- 
cutt,  248  Fed.  596.  Where  a  bill  of  complaint  is  insufficient  to  give 
jurisdiction  in  equity  but  states  a  cause  of  action  at  law,  the  court 
must  transfer  to  the  law  side.  Clinton  Mining  &  Mineral  Co.  v. 
Cochran,  247  Fed.  449,   159  C.   C.   A.  503. 

An  action  at  law  for  damages  for  breach  of  contract  to  make  a 
bequest  can  not  be  transferred  to  the  equity  side,  and_to  transfer  is 
error,  rectifiable  by  mandamus  issuing  out  of  the  supreme  court. 
In  re  Simons,  247  U.  S.  231,  62  L.  Ed.  1094. 

Where  an  action  at  law  was  tried  as  a  suit  in  equity,  injunctions 
being  issued,  and  a  decree  (which  was  really  a  money  judgment), 
and  appeal,  the  reviewing  court  reman'ded  with  directions  to  transfer 
to  the  law  side  and  to  vacate  the  injunctions,  and  affirmed  as  so 
transferred.  The  error  in  this  case  was  "that  plaintiff  brought  in 
equity  that  which  was  not  an  equity  action,  and  thereby  obtained 
injunctive  relief,  which  when  considered  in  the  light  of  the  case 
actually  made,  amounted  to  a  use  of  the  writ  of  injunction  as  the 
substantial  equivalent  of  the  warrant  of  attachment,  and  for  this 
there  was  no  warrant,  in  that  it  gave  rise  to  an  appearance  of  lien 
or  priority  not  justified  by  the  evidence."  Equitable  Trust  Co.  v. 
D.  &  R.  G.  R.  R.,  250  Fed.  327,  162  C.  C.  A.  397. 

The  action  of  the  judge  upon  motion  to  transfer  to  the  other 
side  of  the  court  is  reviewable  in  error,  and  is  not  the  subject  for 
mandamus  proceedings.  Ex  parte  Mason,  244  Fed.  154,  156  C.  C.  A. 
582. 

What  the  court  says  about  Section  274a  in  Waldo  v.  Wilson,  231 
Fed.  654,  145  C.  C.  A.  540,  in  apparent  contradiction  to  the  above  cases, 
must  be  regarded  as  obiter. 


266  SUITS  AT  LAW 

No.  189. 

Petition  of  Defendant  for  Transfer  of  Case  to  Equity  Docket. 

[Caption.] 

Comes  now  Union  Pacific  Railroad  Company,  defendant 
above  named,  by  its  attorneys,  and  respectfully  petitions  the 
court  that  by  order  entered  herein,  all  issues,  both  of  law  and 
of  fact,  presented  by  or  which  may  arise  in  connection  with 
that  portion  of  the  plaintiff's  reply  herein  designated  as  sub- 
division IV,  and  being  "with  reference  to  the  allegations  con- 
tained in  the  fifth  affirmative  defense"  of  the  defendant's  an- 
swer, be  heard  and  determined  upon  the  equity  side  of  this 
court ;  and  for  ground  hereof  shows  unto  the  court  that  while 
by  the  act  of  Congress  of  March  3,  1915,  an  equitable  defense 
to  the  accord  and  satisfaction  and  release  pleaded  by  the  de- 
fendant herein  in  the  fifth  affirmative  defense  of  its  answer 
herein  filed,  may  be  interposed  by  replication  without  necessity 
of  filing  a  bill  on  the  equity  side  of  this  court,  that  neverthe- 
less the  said  statute  was  not  intended  and  does  not  undertake 
to  do  away  with  the  distinction  between  legal  and  equity  de- 
fenses and  the  former  distinction  between  matters  of  legal  and 
matters  of  equitable  cognizance  still  exists ;  that  all  of  the 
issues,  both  of  law  and  of  fact,  presented  by  the  said  portion 
of  the  plaintiff's  reply  hereSn  filed,  are  essentially  of  an  equit- 
able character  and  should  he  determined  in  limine  by  this  court, 
sitting  as  a  court  of  equity,  prior  to  any  trial  of  any  of  the 
other  issues  in  this  case  as  determined  by  the  allegations  of  the 
complaint,  the  defendant's  answer  and  the  plaintiff's  reply. 

(Signed)     Hughes  &  Dorsey, 
(Signed)     John  Q.  Dier, 

Attorneys  for  Defendant. 


No.  190. 

Notice  to  Plaintiff  of  Motions  to  Transfer  Case  to  Equity  Side 
and  Strike  Portions  of  Reply,  etc. 

[Captioti.] 

You  are  hereby  notified  that  at  the  incoming  of  the  United 
States  district  court  for  the  district  of  Colorado,  on  Wednes- 


PROCESS,   MOTIONS,  JUDGMENT,   ETC.  267 

day,  the  28th  day  of  June,  1916,  or  as  soon  thereafter  as  coun- 
sel for  the  defendant  in  the  above  entitled  cause  can  be  heard, 
we  will  present  to  the  court  the  petition  of  the  defendant  that 
all  issues,  both  of  law  and  of  fact,  presented  by  or  which  may 
arise  in  connection  with  that  portion  of  the  plaintiff's  reply 
herein  designated  as  sub-division  IV  and  being  "with  reference 
to  the  allegations  contained  in  the  fifth  affirmative  defense"  of 
the  defendant's  answer,  be  heard  and  determined  upon  the 
equity  side  of  the  court,  and  pray  the  entry  of  an  order  grant- 
ing said  petition,  a  copy  of  which  petition  is  herewith  served 
upon  you : 

You  are  further  notified  that  at  said  time  and  place,  the 
defendant  will  present  to  and  ask  that  the  court  hear  and  deter- 
mine the  defendant's  motion,  which  is  in  the  nature  of  a  de- 
murrer for  insufficiency,  that  there  be  stricken  from  the  reply 
of  the  plaintiff  herein  filed  that  portion  thereof  designated  as 
sub-division  IV,  the  same  being  "with  reference  to  the  allega- 
tions contained  in  the  fifth  affirmative  defense,"  of  the  defend- 
ant's answer  herein,  a  copy  of  which  said  motion  is  herewith 
served  upon  you. 

(Signed)     Hughes  &  Dorsey_, 
John  Q.  Dier> 
Attorneys  for  Defendant. 


No.  191. 

Order  Denying  Motion  of  Defendant  to  Strike  Portions  of 
Reply  to  Answer,  and  Petition  of  Defendant  to  Trans- 
fer the  Case  to  the  Equity  Docket. 

[Caption.] 

At  this  day  comes  defendant,  by  John  Q.  Dier,  its  attorney, 
no  one  appearing  for  or  on  behalf  of  the  plaintiff.  And  the 
motion  of  defendant  to  strike  out  certain  portions  of  the  reply 
to  the  answer  herein,  and  the  petition  of  the  defendant  to  trans- 
fer this  cause  to  the  equity  docket  of  this  court,  coming  on  now 
to  be  heard,  are  argued  by  counsel,  and  the  court,  having  con- 


268  SUITS  AT  LAW 

sidered  the  same,  and  being  now  fully  advised  in  the  premises : 
It  is  ordered  by  the  court,  for  good  and  sufficient  reasons 
to  the  court  appearing,  that  the  said  motion  and  petition  and 
each  thereof  be,  and  the  same  are,  hereby  denied. 


No.  191a. 

Petition  for  Assignment  of  a  District  Judge. 

[Caption.] 
To  the  Honorable,  the  Circuit  Judges  of  the  Fifth  Circuit: 

The  petition  of  The  N.  K.  Fairbank  Company,  defendant 
in  the  above  entitled  cause,  with  respect,  shows  that  the  same 
was  removed  into  said  court  from  the  [name  of  state  court]  on 
the  [date]  and  the  transcript  duly  filed  in  said  district  court  on 
the  [date],  as  will  appear  by  reference  to  the  certificate  of  the 
clerk  hereto  annexed  and  made  a  part  hereof;  that  in  spite  of 
diligent  effort,  your  petitioner  has  been  unable,  up  to  the  pres- 
ent time,  to  secure  a  trial  of  said  cause;  that,  at  very  great 
expense,  it  has  procured  the  attendance  of  witnesses  at  said 
court,  expecting  and  urging  a  trial,  but  various  matters  and 
things  intervened  to  prevent;  that  one  of  its  witnesses  has 
already  died,  and  there  is  danger  of  others,  whose  oral  testi- 
mony is  desired,  becoming  scattered  and  rendering  it  impos- 
sible for  petitioner  to  secure  their  attendance ;  that  his  Honor, 
the  presiding  judge  of  said  court,  has  recently  announced  his 

purpose  to  hold  a  court-  for  two  weeks  at ,  and  will  not 

resume  the  trial  of  causes  in  said  district  court  until  [time], 
and  that  petitioner  has  reason  to  believe  that,  unless  another 
judge  shall  be  presently  assigned  to  hold  said  court  for  the  trial 
of  said  cause  among  others,  petitioner  will  be  greatly  delayed 
through  no  fault  of  its  own,  and  may  lose  the  opportunity  to 
present  its  defense  fully  as  it  desires  and  is  now  able  to  do. 
And  petitioner  represents  that,  in  thus  applying  for  the  assign- 
ment of  a  district  judge  to  hold  said  court  temporarily,  or  dur- 
ing the  absence  of  the  presiding  judge,  no  disrespect  whatever 
is  meant  to  the  latter. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  269 

Prayer.  The  premises  considered,  your  petitioner  respect- 
fully prays  that  it  may  please  your  Honors  to  assign  and  direct 
a  district  judge  to  proceed  and  hold  said  court,  within  some 
short  date,  for  the  purpose  of  trying  and  disposing  of  said 
cause  at  least;  and  that  the  clerk  of  said  court  be  directed  to 
notify  all  parties  of  such  assignment.  A.  B., 

[Date.]  Attorney  for  Defendant. 


No.  191b. 

Certificate  of  Good  Faith. 

l^Caption.'] 

I  hereby  certify  that  I  am  the  attorney  for  the  N.  K.  Fair- 
bank  Company,  the  defendant  in  the  above  entitled  cause,  and 
that  I  reside  in  the  city  of  St.  Louis,  and  am  a  member  of  the 
bar  of  the  city  of  St.  Louis,  of  the  state  of  Missouri,  and  that 
I  have  prepared  the  foregoing  affidavits  at  the  request  and  as 
the  attorney  of  the  said  defendant,  and  that  I  prepared  the 

former  petition  which  was  presented  by  ,  attorneys,  to 

the  circuit  judges  of  the  fifth  circuit,  and  I  further  certify  that 
I  am  familiar  with  the  proceedings  in  this  cause,  and  that  the 
affidavit  and  application  for  the  designation  of  a  district  judge 
are  made  in  good  faith  and  not  for  the  purpose  of  delay  or 
hindrance  of  the  proceedings  herein,  and  therefore  the  defend- 
ant prays  that  the  said  Thomas  G.  Jones,  judge  of  the  district 
court  for  the  northern  division  of  the  middle  district  of  Ala- 
bama, shall  proceed  no  further  in  the  hearing  hereof,  and  de- 
fendant further  prays  that  the  said  Thomas  G.  Jones  shall 
cause  this  fact  to  be  entered  on  the  records  of  the  court,  and 
also  for  an  order  that  an  authenticated  copy  thereof  shall  be 
forthwith  certified  to  the  senior  circuit  judge  of  the  said  fifth 
circuit,  and  for  all  other  and  further  proceedings  herein  as  may 
be  provided  in  sections  14,  20,  21  and  23  of  an  act  to  codify, 
revise  and  amend  the  laws  relating  to  the  judiciary  passed  by 
Congress,  approved  March  3,  1911,  and  effective  from  January 
1,  1912.  X.  Y.  Z., 

[Date.]  Attorney  for  Defendant. 


270  SUITS  AT  LAW 

No.  192. 

Disqualification  of  Judge  (1). 
[Caption.] 

Whereas,  in  the  above  entitled  action  the  undersigned  judge 
of  the  district  court  for  the  Canal  Zone  is  a  party  to  the  litiga- 
tion and  has  a  pecuniary  interest  therein,  and 

Whereas,  said  judge  is  disqualified  under  section  8  of  the 
code  of  civil  procedure  of  the  Canal  Zone  from  sitting  as  judge 
in  the  hearing  of  said  cause ; 

The  undersigned  judge  hereby  declares  himself  disqualified 
from  sitting  in  the  hearing  in  this  cause  or  from  participating 
herein  in  any  manner  other  than  as  a  litigant. 

Wm.  H.  Jackson, 

Judge  District  Court, 

(1)  The  Judicial  Code,  Sees.  13  to  21. 

An  order  by  the  senior  circuit  judge  may  properly  be  worded  thus: 
The  honorable  Rufus  E.  P'oster,  judge  of  the  eastern  district  of  Louisi- 
ana, is  hereby  designated  to  hold  the  district  court  in  the  western 
district  of  Louisiana,  in  the  place  and  in  aid  of  the  judge  thereof,  and 
therein  to  have  the  powers  provided  in  Section  14  of  the  Judicial  Code. 
Apgar  V.  U.  S.,  255  Fed.  16. 

An  affidavit  in  support  of  a  motion  to  disqualify  for  bias  or  preju- 
dice, stating  that  the  judge  has  formed  an  opinion  as  to  the  law  of 
the  case  and  the  rights  of  the  parties,  is  insufficient;  special  allega- 
tions must  be  made  of  personal  prejudice  and  bias.  Henry  v.  Harris, 
191  Fed.  868,  201  Fed.  869,  120  C.  C.  A.  207. 

Affidavit  that  affiant  is  informed  and  believes  that  the  judge  has  a 
personal  prejudice  and  bias  is  insufficient.  Ex  parte  N.  K.  Fairbank 
Co.,  194  Fed.  778.  It  is  proper  for  the  judge  attacked  to  pass  on  the 
affidavit.  Ibidem.  The  certificate  of  good  faith  required  by  the  act 
may  not  be  made  by  an  attorney  who  has  never  been  admitted  to 
practice  before  the  court  in  question,  and  has  never  been  recognized 
in  any  proceeding  therein.     Ibidem. 

In  Henry  v.  Harris,  201  Fed.  869,  120  C.  C.  A.  207,  it  is  decided  that 
the  judge  complained  of  under  Judicial  Code,  Sec.  21,  must  examine 
the  affidavit  to  determine  its  legal  sufficiency,  but  it  is  not  his  duty  to 
decide  the  question  of  his  own  disqualification;  he  shall  merely  pro- 
ceed in  accordance  with  Judicial  Code,  Sec.  20.  Further,  the  affidavit 
in  such  case  is  strictly  construed,  and  the  term  "personal"  quali- 
fying "bias  or  prejudice"  must  be  employed  as  specified  in  the 
statute.    Ibidem. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  271 

It  seems  that  mandamus  will  be  awarded  only  in  case  it  is  clear 
and  indisputable  that  there  is  no  other  legal  remedy,  and  the  remedy 
is  by  exception  to  the  rulings  and  proceedings  in  error  where  the 
judge  complained  of  holds  the  affidavit  insufficient,  or  where  a  judge 
has  been  designated  under  conditions  regarded  as  illegal;  the  rulings 
of  the  designated  judge  may  be  made  the  basis  of  proceedings  in 
error  in  the  same  manner.  Glasgow  v.  Moyer,  225  U.  S.  420,  56 
L.  Ed.  1147. 

Section  21  does  not  apply  to  an  appellate  tribunal.  Kinney  v. 
Plymouth  Rock  Squab  Co.,  213  Fed.  449,  130  C.  C.  A.  586. 


No.  192a. 

Order  of  Disqualification  of  District  Judge. 

[Caption.] 

An  affidavit  of  personal  bias  and  prejudice  and  application 
that  another  judge  be  designated  for  further  proceedings  in 
this  action,  accompanied  by  a  certificate  of  counsel  of  record 
for  plaintiff  herein  that  such  affidavit  and  application  are  made 
in  good  faith,  having  been  filed  by  said  plaintiff  in  this  action, 
it  is  hereby  ordered  that  the  fact  of  the  filing  of  such  affidavit 
and  application  be  entered  on  the  records  of  this  court  and 
that  an  authenticated  copy  thereof  shall  be  forthwith  certified 
to  the  senior  circuit  judge  for  this  circuit  now  present  in  the 
circuit,  to  the  end  that  such  proceedings  may  be  had  thereon 
as  are  provided  by  law.  A.  B.„ 

District  Judge. 


No.  193. 

Designation  of  Judge  by  President. 

The  White  House. 

Hon.  Henry  D.  Clayton, 

United  States  District  Judge, 
Montgomery,  Alabama. 

Sir : — Pursuant  to  the  authority  vested  in  me  by  the  act  of 
Congress,  approved  August  24,  1912,  known  as  the  Panama 
Canal  act,  I  do  hereby  designate  you  to  perform  the  duties  of 


272  SUITS  AT  LAW 

the  judge  of  the  district  court  of  the  Canal  Zone  in  the  trial 
of  the  case  of  William  H.  Jackson,  Relator,  v.  H.  A.  A.  Smith, 
Auditor  of  the  Panama  Canal,  Respondent,  on  account  of  the 
disqualification  of  William  ?I.  Jackson,  judge  of  the  district 
court  of  the  Canal  Zone,  by  reason  of  personal  interest,  and  to 
perform  the  duties  of  said  judge  for  a  period  of  six  weeks 
thereafter  during  the  absence  of  such  judge  from  the  Canal 
Zone  on  leave  of  absence. 

Dated,  Washington,  D.  C,  May  22,  1916. 

WooDROw  Wilson, 
President  of  the  United  States. 


No.  193a. 

Order  Designating  Judge  for  Special  Service. 

Circuit  Court  of  the  United  States, 
District  of  Massachusetts. 

Whereas,  in  my  judgment,  the  public  interest  so  requires,  I 
do  hereby  designate  and  appoint  the  Honorable  Clarence  Hale, 
district  judge  for  the  district  of  Maine,  to  hold  the  February 
term,  1910,  of  the  district  court  of  the  United  States,  for  the 
district  of  Massachusetts. 

Witness  my  hand  at  Boston,  in  the  district  of  Massachusetts, 
this  23d  day  of  February,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  ten.  Francis  C.  Lowell, 

U.  S.  Circuit  Judge. 


No.  194. 

Designation  of  Judge  by  Circuit  Judge. 

[Caption.] 

The  Hon.  Clarence  W.  Sessions,  district  judge  of  the  west- 
ern district  of  Michigan,  is  hereby  designated  and  appointed 
to  hold  the  district  court  of  the  United  States  for  the  northern 
district  of  Ohio,  in  the  matter  of  all  things  pertaining  to  all 
interlocutory  proceedings,  and  the  hearing  and  final  disposition 
of  the  above  entitled  cause. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  273 

This  designation  is  made  in  the  aid  of  the  district  judges  of 
the  northern  district  of  Ohio,  and  for  the  reason  that  it  has 
been  made  to  appear  to  me,  the  senior  circuit  judge  of  the  sixth 
circuit  now  present  in  the  circuit,  that  the  public  interest  re- 
quires such  designation.  The  circumstances  evidencing  such 
requirement  are  shown  by  stipulation  of  counsel  in  the  cause 
hereto  attached. 

Dated  at  Grand  Rapids,  Michigan,  September  3,  1914. 

Arthur  C.  Denison, 

Circuit  Judge. 


No.  195. 

Verdict  Directed  by  the  Court. 

[Caption.] 

This  cause  coming  duly  on  for  trial  the  following  jury  was 
called  and  sworn,  to-wit  [naming  them].  And  thereupon  the 
jurors  of  the  jury  aforesaid  sat  in  the  jury  seats  and  heard  the 
evidence  in  this  cause ;  and  thereupon,  by  direction  of  the  court, 
without  leaving  their  seats,  say  upon  their  oath  that  the  said 
defendant  did  not  undertake  and  promise  in  manner  and  form 
as  the  said  plaintiff  hath  in  his  declaration  in  this  cause  com- 
plained against  him. 


No.  196. 

Verdict  for  the  Plaintiff. 

[Caption.] 

We,  the  jury,  find  in  favor  of  the  plaintiff  and  against  the 

defendant  in  the  sum  of  $ and  interest  on  the  same  from 

the day  of and  for  costs  herein  expended. 

S.  T.,  Foreman. 

No.  197. 

Joint  and  Several  Judgment,  Order. 
[Caption.] 

Now  at  this  time  this  matter  coming  on  regularly  to  be  heard 
upon  plaintiff's  motion  for  a  judgment  on  the  pleadings  in 


274  SUITS  AT  LAW 

favor  of  the  plaintiff,  and  it  appearing  to  the  court  that  the 
pleading-s  are  insufficient  to  sustain  a  different  judgment,  not- 
withstanding any  evidence  which  might  be  produced,  and  this 
court  has  heretofore  sustained  plaintiff's  demurrer  to  defend- 
ants' further  and  separate  answer  and  defense,  and  said  de- 
fendants have  failed  and  declined  to  amend  said  further  and 
separate  defense,  or  further  plead,  and  the  answer  as  it  now 
stands  admits  and  leaves  undenied  all  of  the  material  allega- 
tions of  the  complaint,  but  denies  only  the  legal  conclusions 
contained  in  said  complaint,  and  it  further  appearing  to  the 
court  that  said  motion  should  be  granted,  it  is  therefore  con- 
sidered, ordered  and  adjudged  that  plaintiff's  motion  for  a 
judgment  on  the  pleadings  is  hereby  granted  and  that  plaintiff 
do  have  and  recover  of  and  from  the  defendants  herein,  and 
each  of  them,  the  sum  of  eight  hundred  seventy  dollars  and 
seventy  cents  ($870.70),  together  with  interest  thereon  from 
June  27,  1911,  and  for  plaintiff's  costs  and  disbursements  taxed 
and  allowed  at  the  sum  of  twenty  and  85/100  dollars  ($20.85), 
and  that  execution  issue  therefor.  X.  Y., 

District  Judge. 


No.  198. 

Order   of    Supreme    Court   in   Suit,   between    States,    on   an 

Indebtedness. 

Supreme  Court  of  the  United  States. 
Original  No.  2.  October  Term,  1914. 

Commonwealth  of  Virginia,  Complainant, 

V. 

State  of  West  Virginia,  Defendant. 

This  cause  came  to  be  heard  on  pleadings  and  proofs,  the 
reports  of  the  special  master  and  the  exceptions  of  the  parties 
thereto,  and  was  argued  by  counsel. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  275 

On  consideration  whereof,  the  court  finds  that  the  defend- 
ant's share  of  the  debt  of  the  complainant  is  as  follows : 

Principal,  after  allowing  credits  as  stated,  $ ;  interest 

from  January  1,   1861,  to  July  1,   1891,  at  4%  per  annum, 

$ ;  interest  from  July  1,  1891,  to  July  1,  1915,  at  3%  per 

annum,  $ ;  making  a  total  of  interest  of  $ ,  which 

added  to  the  principal  sum  makes  a  total  of  $ , 

It  is  therefore  now  here  ordered,  adjudged  and  decreed  by 
this  court  that  the  complainant.  Commonwealth  of  Virginia, 
recover  of  and  from  the  defendant.  State  of  West  Virginia, 

the  sum  of  $ ,  with  interest  thereon  from  July  1,  1915, 

until  paid,  at  the  rate  of  5%  per  annum. 

It  is  further  ordered,  adjudged  and  decreed  that  each  party 
pay  one-half  of  the  costs. 

June  14,  1915. 


No.  199. 

Verdict  for  the  Plaintiff  against  Two  or  More   Defendants 

Jointly  (1). 
[Caption.] 

We,  the  jury,  find  in  favor  of  the  plaintiff  and  against  both 
the  defendants  jointly  in  the  sum  of  $ ,  with  interest  there- 
on from  the day  of and  for  costs  herein  expended. 

G.  R,,  Foreman. 

(1)  Where  the  action  is  joint  the  verdict  must  be  joint.  Washing- 
ton Gas  Light  Co.  v.  Lansden,  172  U.  S.  534,  556;  Albright  v.  McTighe, 
49  Fed.  Rep.  817. 


No.  200. 

Verdict  for  the  Defendant. 
[Caption.] 

We,  the  jury,  find  in  favor  of  the  defendant  and  against  the 
plaintiff.  G.  R.,  Foreman. 


276  SUITS  AT  LAW 

No.  201. 

Order    Overruling    Demurrer    to    Petition    and    Permitting 

Amendment. 

[Caption.] 

The  demurrer  of  the  defendant  to  the  petition  herein  having 
been  heretofore  argued  and  submitted  and  due  consideration 
having  been  given  the  same,  considered  that  said  petition  is 
good  and  sufficient  in  law,  and  that  said  demurrer  be  and  the 

same  hereby  is  overruled  with dollars  costs ;  further  that 

said  defendants  have  — • —  days  in  which  to  file  and  serve  an- 
swer to  said  petition. 


No.  202. 

Order    Sustaining    Demurrer   to    Declaration    and    Allowing 

Amendment. 

[Caption.] 

In  this  cause  came  the  parties,  by  their  attorneys,  and  came 
on  to  be  heard  the  demurrer  of  the  defendant.  Northern  Rail- 
road Company,  to  the  plaintiff's  declaration,  and  the  same 
having  been  argued  by  counsel,  considered  of  and  well  under- 
stood by  the  court,  the  court  is  pleased  to  sustain  the  following 
grounds  in  said  demurrer,  to-wit:  Nos.  1  and  2  to  the  effect 
that  plaintiff  shows  no  right  to  recover,  and  No.  7,  because 
the  third  count  is  against  the  Northern  Railroad  Company 
alone,  the  court  being  of  opinion  that  this  makes  a  misjoinder 
of  counts ;  and  No.  8,  because  the  latent  defects  of  the  engine 
are  not  alleged  with  reasonable  certainty,  and  the  court  is 
pleased  to  overrule  all  other  grounds  in  said  demurrer. 

Thereupon  on  motion  of  plaintiff's  attorney  for  leave  to 
amend,  and  it  appearing  that  it  is  necessary  for  the  satisfactory 
adjustment  of  the  rights  of  all  parties,  it  is  accordingly  ordered 
and  decreed  by  the  court  that  leave  be  granted,  and  the  same  is 
granted  plaintiff  to  amend  his  declaration  filed  in  the  above 
entitled  cause,  by  showing  in  each  count  that  this  suit  is  for 
the  benefit  of  the  next  of  kin,  and  also  by  setting  out  the  next 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  277 

of  kin  to  plaintiff's  intestate  as  follows :  Mrs.  Virgie  Mozely, 
Mrs.  Lilly  Jerrard,  Minnie  Buice,  Mamie  Buice  and  Allie 
Buice,  sisters  of  the  deceased. 


No.  203. 

Leave  to  Amend  Answer  in  Open  Court. 

[Caption.] 

The  defendant  is  given  leave  to  amend  its  answer  instanter 
by  interlining  in  the  ninth  line  of  defendant's  answer  to  plain- 
tiff's amended  complaint,  after  the  words  "on  cross-petition" 
these  words,  "for  liquidated  damages." 


No.  204. 

Order  Overruling  Demurrer  (1). 

[Caption.] 

The  defendants  in  this  action,  having  filed  a  demurrer  to  the 
complaint  on  the  ground  that  it  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action,  and  said  demurrer  being  duly 
brought  on  for  hearing  at  this  term  of  court,  and 

After  hearing  Hillard  P.  Jessup,  Esq.,  attorney  for  the  de- 
fendants in  support  of  said  demurrer,  and  A.  B.  and  C.  S., 
Esqs.,  attorneys  for  the  plaintiff  in  opposition  thereto,  and  after 
due  deliberation,  it  is  hereby 

Ordered,  that  said  demurrer  be,  and  the  same  hereby  is 
overruled,  but  defendants  may  answer  in  ten  days  after  being 
served  with  a  copy  of  this  order;  if  no  answer  is  interposed, 
the  plaintiff  will  have  judgment  in  due  course. 

X.  Y., 
District  Judge. 

(1)  See  No.  201. 


278  SUITS  AT  LAW 

No.  205. 

Order  Overruling  Demurrer  for  Failure  to  Prosecute. 

[Caption.] 

Defendant's  demurrer  having  been  called  on  three  consecu- 
tive law  calendars  without  answer,  it  is  ordered  that  said  de- 
murrer be  and  the  same  is  hereby  overruled  for  want  of 
prosecution.  X.  Y,, 

District  Judge. 


No.  206. 

Election  of  Defendants  to  Stand  on  Answer  after  Demurrer 
Thereto  Allowed. 

[Caption.] 

Come  now  M.  A.  Miller,  collector  of  internal  revenue  for 
the  United  States  for  the  district  of  Oregon,  and  David  M. 
Dunne,  the  above-named  defendants,  by  E.  A.  Johnson,  assist- 
ant United  States  attorney  for  Oregon,  and  attorney  for  de- 
fendants above  named,  and  show  unto  the  court  that  they  are 
unable  to  further  amend  their  answer  heretofore  in  the  above 
entitled  cause  filed,  and  by  this  honorable  court  on  the  3d  day 
of  August,  1914,  held  insufficient  upon  demurrer  of  plaintiff, 
and  by  reason  thereof  hereby  elect  to  stand  upon  their  answer 
heretofore  filed'as  aforesaid.  E,  A.  Johnson, 

Attorney  for  Defendants. 


No.  207. 

Order  Sustaining  Demurrer  to  Pleas. 

[Caption.] 

The  court  having  considered  and  being  now  fully  advised, 
it  is  ordered  that  the  demurrers  of  the  plaintiff  to  the  fourth, 
fifth  and  sixth  pleas  of  the  defendant  be  and  the  same  are 
hereby  sustained. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  279 

No.  208. 

Judgment  where  no  Jury. 

[Caption.] 

This  cause  having  come  on  regularly  for  trial  before  the 
court  without  a  jury,  and  having  been  submitted  for  decision 
and  judgment  on  the  pleadings  and  agreed  statement  of  facts 
filed  therein,  and  the  court  having  heard  the  arguments  of  the 
attorneys  for  the  respective  parties  and  having  duly  considered 
said  pleadings  and  agreed  statement  of  facts,  it  is  now  ordered, 
adjudged  and  decreed  that  the  plaintiff  do  have  and  recover  of 

and  from  the  defendant  the  sum  of dollars,  with  interest 

thereon  from  this  date  at  the  rate  of %  per  annum  and 

costs  hereby  taxed  at dollars. 


No.  209. 

Judgment  where  Jury  Waived. 

[Caption.] 

This  cause  having  come  on  regularly  on  Wednesday,  the 
17th  day  of  June,  1914,  being  a  day  in  the  January  term,  A.  D. 
1914,  of  the  district  court  of  the  United  States  for  the  southern 
district  of  California,  southern  division,  to  be  tried  before  the 
court  and  a  jury  to  be  impaneled;  Harry  R.  Archbald,  Esq., 
assistant  U.  S.  attorney,  and  Monroe  C.  List,  Esq.,  special 
assistant  to  the  U.  S.  attorney-general,  appearing  as  counsel 
for  the  United  States ;  Paul  Burks,  Esq.,  appearing  as  counsel 
for  the  defendant ;  and  a  stipulation  as  to  facts  having  been 
filed  in  open  court,  and  it  appearing  that  said  stipulation  con- 
tains an  express  waiver  of  the  right  to  trial  by  jury  herein; 
and  said  cause  having  thereupon  come  on  to  be  tried  by  the 
court,  sitting  without  a  jury;  and  said  cause  having  been 
argued,  on  behalf  of  the  government,  by  Monroe  C.  List,  Esq., 
special  assistant  to  the  \j.  S.  attorney-general,  of  counsel  for 
the  United  States,  and  on  behalf  of  defendant  by  Paul  Burks, 
Esq.,  of  counsel  for  defendant,  and  on  behalf  of  the  govern- 
ment in  reply  by  Monroe  C.  List,  Esq.,  special  assistant  to  the 


280  SUITS  AT  LAW 

U.  S.  attorney-general,  of  counsel  for  the  United  States ;  and 
said  cause  having  been  submitted  to  the  court  for  its  considera- 
tion and  decision;  and  on  the  20th  day  of  June,  1914,  findings 
of  fact  and  conclusions  of  law  having  been  filed  by  the  court 
herein,  and  the  court  having  ordered  that,  in  accordance  with 
said  findings  of  fact  and  conclusions  of  law,  judgment  be  en- 
tered in  favor  of  the  plaintiff  and  against  the  defendant  on 
each  of  the  three  causes  of  action  set  forth  in  the  complaint 
herein,  together  with  costs  of  plaintiff  incurred  herein ;  and 
that  a  penalty  of  $100  be  assessed  on  each  of  said  causes  of 
action ; 

Now,  therefore,  by  virtue  of  the  law  and  by  reason  of  the 
premises  aforesaid,  it  is  considered  by  the  court  that  the  United 
States  of  America,  plaintiff  herein,  have  and  recover  of  and 
from  The  Atchison,  Topeka  &  Santa  Fe  Railway  Company, 
defendant  herein,  three  hundred  dollars  ($300),  together  with 
plaintiff's  costs  herein,  taxed  at  $36.50. 

Judgment  entered  June  22,  1914. 

Wm.  M.  Van  Dyke,  Clerk. 

By  Leslie  S.  Colyer,  Deputy  Clerk. 


No.  210. 

(Another  form.) 
Judgment  on  Stipulation  of  Facts  and  Waiver  of  Jury. 

[Caption.] 

This  day  came  again  the  parties  by  their  respective  attorneys, 
and  tendered  to  the  court  and  asked  leave  to  file  herein  an 
agreed  statement  of  facts,  entitled  "Stipulation  of  Facts," 
dated  December  2,  1916,  and  signed  by  the  attorneys  for  the 
plaintiff  and  defendant  respectively,  which  stipulation  is  or- 
dered to  be  filed  and  made  a  part  of  the  record  in  this  cause. 

And  thereupon  neither  party  desiring  to  introduce  additional 
evidence,  and  neither  party  requiring  a  jury,  by  consent  of  the 
parties  this  cause  was  submitted  to  the  court,  in  lieu  of  a  jury. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  281 

upon  said  stipulation  of  facts  and  upon  argument  of  counsel; 
upon  consideration  whereof  the  court  is  of  opinion  to  and  doth 
find  for  the  plaintiff  and  assess  its  damages  at  twenty-one  thou- 
sand, six  hundred  and  fifty-two  dollars  and  thirty-five  cents 
($21,652.35),  as  of  this  date,  and  the  decision  of  the  court  is 
set  forth  in  a  written  opinion,  filed  herein  and  made  a  part  of 
the  record  in  this  cause. 

It  is  therefore  considered  by  the  court  that  the  plaintiff,  the 
Toledo  and  Ohio  Central  Railway  Company,  a  corporation,  do 
recover  of  and  from  the  defendant,  the  Chesapeake  and  Ohio 
Coal  and  Coke  Company,  a  corporation,  the  sum  of  twenty-one 
thousand  six  hundred  and  fifty-two  dollars  and  thirty-five  cents 
($21,652.35),  with  interest  thereon  from  this  day  until  paid, 
and  that  the  said  plaintiff  do  also  recover  of  and  from  the  said 
defendant  its  costs  about  the  prosecution  of  its  action  in  this 
cause  expended,  including  an  attorney's  fee  as  allowed  by  stat- 
ute, and  all  proper  taxable  costs  herein ;  and  to  the  judgment 
of  the  court  herein  the  defendant,  by  its  attorneys,  objects  and 
excepts.  And  the  defendant  is  given  sixty  (60)  days  to  pre- 
pare and  present  to  the  court  such  bill  or  bills  of  exceptions 
herein  as  it  may  be  advised. 


No.  211. 

(Another  form.) 

Judgment  where  Jury  Waived  and  Court  Makes  Findings  and 
States  Conclusions  of  Law. 
[Caption.] 

The  issues  in  this  action  having  been  duly  brought  to  trial 
before  Hon.  George  W.  Ray,  United  States  district  judge, 
at  a  term  of  this  court  held  at  Syracuse,  N.  Y.,  on  the  12th 
day  of  September,  1912,  all  the  parties  appearing,  and  the 
court  having  heard  tlie  allegations  and  proofs  of  the  parties, 
and  after  due  deliberation  having  duly  made  its  decision  in 
writing  in  favor  of  the  plaintiff  and  against  the  defendants. 


282  SUITS   AT  LAW 

with  findings  of  fact  and  conclusions  of  law  duly  filed  in  the 
clerk's  office  of  said  court. 

Now,  on  said  decision  and  on  motion  of  Elisha  B.  Powell, 
plaintiff's  attorney,  it  is : 

Ordered,  adjudged  and  decreed,  that  the  plaintiff,  Louis  R. 
Hunter,  recover  of  the  defendants,  The  Baker  Motor  Vehicle 
Company,  and  its  surety,  American  Bonding  Company  of  Bal- 
timore, the  sum  of  $8,329.75  and  interest  thereon  from  the  4th 
day  of  February,  1909,  less  $692.69  and  interest  thereon  from 
October  14,  1908,  to-wit,  $10,683.07,  besides  the  costs  of  this 
action  taxed  at  $107.50,  in  all,  $10,790,57,  and  have  execu- 
tion therefor. 

Judgment  signed  and  entered  this  7th  day  of  October,  1915, 
at  3  o'clock  p.  m. 

W.    S.   DOOLITTLE, 

Clerk. 


No.  212. 

Judgment  (1) — ^non-Suit  as  to  Certain  Parties  Defendant. 

[Caption.] 

This  cause  having  been  brought  on  for  trial  at  this  term  of 
said  court  and  having  been  tried  before  Iiis  Honor,  J.  C. 
Pritchard.  circuit  judge,  and  a  jury,  and.  his  honor  being  at 
the  close  of  tlie  evidence  of  opinion  that  upon  the  evidence  and 
the  record  in  the  case  the  plaintiff  is  not  entitled  to  recover  as 
against  the  defendants,  the  Western  North  Carolina  Railroad 
Company,  and  Luther  Long,  the  plaintiff  voluntarily  submits 
to  judgment  of  non-suit  herein  as  to  said  defendants. 

Whereupon,  it  is  ordered  and  adjudged  by  the  court  that 
the  said  defendants,  The  Western  North  Carolina  Railroad 
Company,  and  Luther  Long,  go  hence  without  day ;  that  the 
plaintiff  as  to  them  take  nothing  by  his  writ,  and  that  they, 
the  said  defendants,  The  ^^''estern  North  Carolina  Railroad 
Company,  and  Luther  Long,  have  and  recover  of  tlie  plaintiff 
herein  and  his  surety  upon  his  prosecution  bond  herein,  their 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  283 

costs  in  this  behalf  incurred  to  be  taxed  by  the  clerk  of  this 
court,  this  10th  day  of  October,  1905. 

J.  C.  Pritchard, 
Circuit  Judge. 

(1)  Compulsory  non-suit  is  permissible  in  a  federal  court  only 
where  a  statute  of  the  state  authorizes  it;  it  has  been  generally  dis- 
placed by  the  practice  of  directing  a  verdict  for  defendant.  Board  of 
Commissionrs  v.  Home  Sav.  Bank,  200  Fed.  28,  118  C.  C.  A.  256, 
and  see  also  187  Fed.  80. 

"The  difference  between  a  cornpulsory  non-suit  and  a  directed 
verdict  for  the  defendant  is  matter  of  form  rather  than  substance, 
except  that  in  the  case  of  the  former,  a  new  action  may  be  brought, 
while  in  the  case  of  a  directed  verdict  and  judgment  thereon  the 
action  is  ended,  unless  a  new  trial  is  granted  on  motion  or  on  appeal." 
Board  of  Commissioners  v.  Home  Sav.  Bank,  supra.  And  in  Slocum 
V.  N.  Y.  Life  Ins.  Co.,  228  U.  S.  364,  57  L.  Ed.  879,  Justice  Van  De- 
vanter  examines  the  practice  re  (1)  demurrer  to  evidence,  (2)  non- 
suit, and  (3)  request  for  directed  verdict,  and  sharply  distinguishes 
them,  at  pages  394,  395. 

Where  a  person,  whose  presence  in  a  suit  is  proper  but  not  indis- 
pensable, can  not  be  made  a  party  without  ousting  the  jurisdiction 
of  the  trial  court,  it  may  in  its  discretion  proceed  in  his  absence, 
by  allowing  amendments  to  pleadings  and  dismissal  of  the  party. 
Thomas  v.  Anderson,  223  Fed.  41,  138  C.  C.  A.  405. 


No.  213. 

Entry — Impaneling  of  Jury  and  Beginning  of  Trial.  (1) 

[Caption.] 

At  this  day  comes  the  plaintiff  by  Omar  Garwood,  Esquire, 
his  attorney,  and  the  defendant  by  John  O.  Dier,  Esquire, 
its  attorney,  also  comes.    iVnd  thereupon,  comes  a  jury,  to-wit: 

Abraham  S.  Nadel  J.  H.  McDonald 

Jesse  Schwayder  E.  \V.  Louden 

Edward  J.  McCabe  Thomas  H.  Bower 

Walter  Appledorn  Edward  \V.  Dunn 

Fred  Berbower  Henry  Yant 

Joseph  O.  Mitchell  Patrick  O.    Sullivan. 

twelve  good  and  lawful  men,  and  tliey  are  each  duly  selected 
and  tried,  impaneled  and  sworn  to  well  and  truly  trv  the  issues 


284  SUITS  AT  LAW 

herein  joined  and  a  true  verdict  render  according  to  the  law 
and  the  evidence. 

And  thereupon  comes  the  evidence,  the  hearing  of  which  is 
continued  to  the  hour  of  adjournment.  And  the  said  jurors 
being  now  each  duly  cautioned  by  the  court  not  to  converse 
among  themselves  or  with  others  touching  this  case,  or  the 
matters  at  issue  herein,  or  the  evidence  heard,  or  any  part 
thereof,  nor  to  listen  to  such  conversation  of  others,  are  per- 
mitted to  retire  to  meet  the  court  at  its  next  incoming. 

(1)   See  No.  177. 


No.  214. 

Motion  to  Dismiss  Complaint  in  Open  Court  upon  Completion 
of  Prima  Facie  Case. 

The  Court:  Are  there  any  motions? 

Mr.  Clark:  I  move  to  dismiss  the  complaint  as  to  the  de- 
fendants, Chiarello  Brothers  Company  and  Dick  Chiarello  & 
Brothers,  Inc.,  on  the  ground  that  no  negligence  has  been 
shown  upon  the  part  of  either  of  those  companies ;  upon  the 
ground  that  it  has  not  been  in  any  way  shown  that  they  were 
in  any  way  connected  with  this  transaction  at  all,  bearing  in 
mind  that  they  are  two  corporations.  There  is  no  evidence 
that  the  corporation  was  present  at  the  time  of  this  accident, 
or  previous  to  it  by  any  authorized  representative.  There  is  no 
evidence  that  either  one  of  these  corporations  entered  into  any 
contract  with  the  Long  Leaf  Pine  Company.  The  evidence, 
so  far  as  it  goes,  shows  clearly  that  the  stevedoring  there  was 
done  by  the  Merritt  &  Chapman  Derrick  &  Wrecking  Com- 
pany and  that  it  was  done  under  orders  and  directions  issued 
by  a  Mr.  Wild,  the  representative  of  the  Long  Leaf  Pine 
Company.  The  only  employe  that  any  witness  has  testified 
to  of  either  Chiarello  Brothers  Company  or  Dick  Chiarello  & 
Brothers  does  not  state  anywhere  as  to  which  one  of  these 
companies  he  was  employed  by.  It  was  stated  to  be  the  cap- 
tain of  the  lighter.     It  certainly  is  inconceivable  in  view  of 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  285 

the  testimony,  in  view  of  the  weights  of  these  packages  of 
lumber,  that  Captain  Samsen  single-handed  was  there  acting 
as  a  stevedore  to  unload  that  lumber  from  the  dock  to  the 
lighter. 

The  Court:  Is  that  all? 

Mr.  Clark:  Yes. 

The  Court :  I  will  deny  the  motion  at  this  stage  of  the  case. 

Mr.  Clark :  Exception. 


No.  215. 

Motion  by  Defendant  to  Dismiss  and  to  Direct  Verdict,  upon 
Completion  of  Plaintiff's  Prima  Facie  Case. 

Defendant  moves  that  the  plaintiff's  complaint  be  dismissed 
and  that  the  court  direct  a  verdict  for  the  defendant  on  the 
following  grounds : 

First.  That  the  plaintiff  has  failed  to  show  any  negligence 
for  which  the  defendant  is  liable  as  a  matter  of  law. 

Second.  That  the  evidence  shows  conclusively  that  the  plain- 
tiff's injuries  were  caused  wholly  by  his  own  negligence. 

Third.  That  the  plaintiff  must  be  held  as  a  matter  of  fact 
and  of  law,  under  the  evidence,  to  have  assumed  the  risks  of 
being  injured  in  the  way  and  manner  in  which  he  was  injured. 

Fourth.  That  the  sole  proximate  cause  of  the  plaintiff's 
injuries  was  his  own  negligent  acts  in  doing  his  work. 

Fifth.  That  the  evidence  shows  conclusively  that  the  mine 
structure,  ways,  works  and  facilities,  whatever  their  condition 
may  have  been  at  the  time  of  the  accident,  are  not  relevant 
or  material  to  this  case. 

Sixth.  That  the  evidence  shows  conclusively  that  there  was 
no  explosion  of  accumulated  gas  in  the  chamber  or  working 
place  where  the  plaintiff  was  working  at  the  time  of  the 
accident. 

Seventh.  That  the  evidence  shows  conclusively  that  plain- 
tiff's injuries  were  not  caused  by  anything  directly  or  indi- 
rectly related  to  the  ventilation  of  the  mine. 


286  SUITS  AT  LAW 

Eighth.  That  the  defendant  owed  no  duty  to  the  plaintiff 
to  furnish  plaintiff  with  anything  except  a  properly  ventilated 
place  to  work  in. 

Ninth.  That  the  evidence  shows  conclusively  that  the  de- 
fendant violated  no  legal  duty  towards  the  plaintiff. 

Tenth.  That  the  evidence  shows  conclusively  that  plaintiff's 
injuries  were  caused  by  an  explosion  of  powder  which  he  shot 
off  himself,  and  that  plaintiff  was  an  expert  miner  of  long 
experience  in  handling  explosives  and  in  firing  them  off. 


No.  216. 

Motion  by  Defendant  to  Dismiss  and  Direct  Verdict  at  Con- 
clusion of  All  Testimony. 
[Caption.] 

The  defendant  moves  that  the  plaintiff's  complaint  be  dis- 
missed and  also  moves  for  the  direction  of  a  verdict  on  behalf 
of  the  defendant  on  all  the  grounds  specified  in  the  defendant's 
previous  motion  for  the  same  purpose,  which  was  made  at  the 
close  of  the  plaintiff's  evidence. 


No.  217. 

Motion  to  Exclude  All  Evidence  and  to  Instruct  Jury  to  Find 

for  Defendant. 
[Caption.] 

And  now  at  the  close  of  all  the  evidence  in  said  cause,  comes 
the  defendant,  Kawin  &  Company,  by  Ringer,  Wilhartz,  Louer 
&  Concannon,  its  attorneys,  and  moves  the  court  to  exclude 
all  of  the  evidence  offered  or  admitted  in  this  cause  and  to 
give  to  the  jury  the  following  instruction : 

The  court  instructs  the  jury  to  find  the  issues  joined  for 
the  defendant.  A.  and  B., 

Attorneys  for  Defendant. 


PROCESS,   MOTIONS,  JUDGMENT,   ETC.  287 

No.  218. 

Judgment  for  Plaintiff. 

[Caption.] 

Came  again  the  said  plaintiff,  with  his  attorneys,  and  the 
said  defendant,  by  its  attorneys,  and  came  again  also  the  jury 
heretofore  impaneled  and  sworn  herein,  when  the  trial  of  this 
case  was  again  resumed  and  the  jury  having  heard  the  testi- 
mony, listened  to  the  arguments  of  counsel  and  received  the 
charge  of  the  court  upon  their  oaths  do  say  they  find  the 
issues  herein  joined  to  be  in  favor  of  the  said  plaintiff  and 
against  the  said  defendant,  and  that  they  assess  the  amount 
of  the  plaintiff's  damage  and  recovery  herein  against  the  de- 
fendant at  the  sum  of thousand  dollars. 

On  motion  of  the  plaintiff  it  is  therefore  hereby  considered 
by  the  court  that  said  plaintiff,  A.  B.,  do  have  and  recover  of 
and   from   said   defendant,   The  L.   Railroad   Company,   said 

sum  of  thousand  dollars  and  the  costs  of  this  suit  for 

the  collection  of  which  said  sum  and  costs,  execution  is  hereby 
awarded. 


No.  219. 

Judgment  for  Defendant. 
[Caption.] 

The  jury  by  whom  the  issue  joined  in  this  cause  was  tried 
having  rendered  a  verdict  in  favor  of  the  said  defendant  and 
against  the  said  plaintiff;  therefore,  it  is  considered  that  the 
said  plaintiff  take  nothing  by  his  suit,  and  that  the  said  de- 
fendant do  go  thereof  without  day.  And  it  is  further  con- 
sidered that  the  said  defendant  do  recover  against  the  said 
plaintiff  his  costs  and  charges  by  him  about  his  defense  in 
this  behalf  expended,  to  be  taxed;  and  that  the  said  defend- 
ant have  execution  thereof. 


288  SUITS   AT  LAW 

No.  220. 

Order  Sustaining  Demurrer  and  Judgment  for  Defendant. 

[Caption.] 

This  cause  being  heard  this  day  upon  the  demurrer  of  the 
defendant  to  the  petition  of  the  plaintiff  and  was  argued  by 
counsel  and  the  court  being  fully  advised  in  the  premises,  is 
of  the  opinion  and  do  therefore  order  that  said  demurrer  be, 
and  the  same  is  hereby  sustained,  to  which  ruling  of  the  court 
said  plaintiff,  by  its  counsel,  excepts. 

And  thereupon  the  plaintiff  not  asking  to  plead  further,  it  Is 
considered  by  the  court  that  the  defendant  go  hence  without 
day  and  recover  from  the  plaintiff  its  costs  herein  expended. 


No.  221. 

Motion  for  Judgment  on  the  Pleadings. 
[Caption.] 

Comes  now  the  plaintiff,  the  Snake  River  Valley  Railroad 
Company,  and  moves  the  court  for  a  judgment  on  the  plead- 
ings in  favor  of  the  plaintiff  herein,  upon  the  grounds  and  for 
the  reasons  that  the  pleadings  are  insufficient  to  sustain  a 
different  judgment,  notwithstanding  any  evidence  which  might 
be  produced,  and  this  court  has  heretofore  sustained  plain- 
tiff's demurrer  to  defendants'  further  and  separate  answer 
and  defense,  and  said  defendants  have  failed  and  declined 
to  amend  said  further  and  separate  defense  or  further 
plead,  and  the  answer  as  it  now  stands  admits  and  leaves 
undenied  all  of  the  material  allegations  of  the  complaint,  more 
particularly  as  follows,  to-wit: 

[Here  follow  the  items.] 

A.  B.  and  C.  D., 
Attorneys  for  Plaintiff. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  289 

No.  222. 

Judgment  in  Condemnation  Proceeding. 
[Caption.] 

In  this  cause  heretofore  tried  before  a  jury  of  freeholders, 
the  court  considering  the  verdict  of  the  jury,  and  the  law  and 
the  evidence,  and  the  same  being  in  favor  of  plaintiff  and 
against  defendant,  and  justifying  the  relief  hereinafter  granted, 
it  is  ordered,  adjudged  and  decreed  that  the  right  of  way  or 
easement  described  in  plaintiff's  petition  herein  be,  and  the 
same  is  hereby,  condemned  and  adjudged  to  plaintiff,  the 
Western  Union  Telegraph  Company,  for  the  purposes  and 
subject  to  the  conditions  named  in  said  petition,  the  same  to 
vest  in  plaintiff  when  the  amount  of  the  said  verdict,  to-wit, 
the  sum  of  six  thousand  dollars  ($6,000.00)  shall  have  been 
paid  to  the  defendant,  or  the  clerk  of  this  court,  in  accordance 
with  law,  and  that  plaintiff  pay  all  costs. 

The  said  right  of  way  or  easement  is  more  specifically  de- 
scribed as  follows,  to-wit: 

The  right  to  construct,  maintain  and  operate  a  line  of  tele- 
graph poles  and  wires  along  the  right  of  way  of  the  defendant 
in  the  parishes  of  Orleans  and  St.  Tammany  in  this  state, 
beginning  at  a  point  in  the  city  of  New  Orleans  at  the  inter- 
section of  the  property  lines  at  the  corner  of  Elysian  Fields 
street  and  Laforce  street  (now  North  Tonti  street)  in  square 
No,  1210,  and  running  thence  in  an  easterly  direction  through 
the  parishes  of  Orleans  and  St.  Tammany  to  the  thread  of  the 
stream  known  as  Pearl  River,  the  dividing  line  between  the 
states  of  Louisiana  and  Mississippi,  a  distance  of  approximately 
35.38  miles,  including  the  bridges  belonging  to  the  said  de- 
fendant traversing  the  streams  known  as  "Little  Rigolets" 
and  "Rigolets"  respectively,  and  forming  part  of  defendant's 
said  right  of  way. 

For  a  distance  of  approximately  two  miles  from  the  corner 
of  Elysian  Fields  and  North  Tonti  street  said  line  shall  ex- 
tend along  the  south  side  of  said  right  of  way;  at  this  point 


290  SUITS   AT  LAW 

it  shall  cross  over  the  line  of  track,  roadbed  and  structures  of 
defendants'  railroad  and  for  a  distance  of  approximately  two 
miles  shall  extend  along  the  northern  side  of  said  right  of 
way;  at  this  point  it  shall  recross  the  line  of  track,  roadbed 
and  structures  of  the  defendant's  railroad  and  thence  to  the 
bridge,  known  as  the  Rigolets  bridge,  it  shall  extend  along 
the  southern  side  of  defendant's  right  of  way;  at  this  point  it 
shall  recross  the  tracks  and  along  the  said  bridge  extend  on 
the  northern  side  of  the  track;  it  shall  then  recross  the  track 
and  from  the  eastern  end  of  the  Rigolets  bridge  to  Pearl  River 
shall  extend  along  the  southern  side  of  the  right  of  way. 

On  the  bridges  crossing  the  streams  known  as  Little  Rigolets 
and  Rigolets,  respectively,  there  shall  be  three  and  thirty-four 
poles,  respectively,  erected  and  attached  as  shown  on  the 
sketch  attached  to  plaintiff's  petition  and  marked  Exhibit  C. 

The  poles  on  which  wires  are  strung  shall  be  located  at  ap- 
proximately a  distance  of  91.65  feet  apart  and  approximately 
at  distances  from  the  center  of  defendant's  main  track  shown 
on  the  profile  attached  to  plaintiff's  petition  and  marked  Ex- 
hibit B,  that  is  to  say,  from  North  Tonti  street  to  Gentilly, 
at  an  average  distance  of  46.57  feet;  from  Gentilly  to  Michaud 
at  an  average  distance  of  29.50  feet ;  from  Michaud  to  Chef 
Menteur  at  an  average  distance  of  32  feet ;  from  Chef  Men- 
teur  to  Lake  Catherine  at  an  average  distance  of  32.13  feet; 
from  Lake  Catherine  to  Rigolets  at  an  average  distance  of 
33.13  feet;  from  Rigolets  to  Dunbar  at  an  average  distance 
of  28  feet ;  from  Dunbar  to  Pearl  River  at  an  average  distance 
of  32.25  feet. 

The  whole  of  said  line  shall  be  so  constructed  and  main- 
tained as  not  to  interfere  with  the  use  of  its  said  right  of  way 
by  the  defendant  for  the  purposes  of  its  business  of  operating 
a  railroad,  and  if  at  any  time  in  the  future  it  shall  become 
necessary  for  the  defendant  to  change  the  location  of  its 
tracks,  or  to  construct  new  tracks  or  side  tracks,  or  other 
structures  for  the  purposes  of  its  said  railroad  business,  and 
for  such  purpose  to  use  and  occupy  the  portion  of  the  right 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  291 

of  way  on  which  plaintiff's  telegraph  line  may  be,  then  plain- 
tiff shall  at  its  own  expense,  upon  reasonable  notice  from 
the  defendant,  remove  its  poles,  cross-arms  and  wires  to  such 
other  point  or  points  on  said  right  of  way  as  may  be  reason- 
ably designated  by  the  defendant. 

The  right  of  way  or  easement  herein  condemned  is  especially 
described  and  set  forth  in  plaintiff's  petition  and  the  exhibits 
attached  thereto,  marked  Exhibits  A,  B  and  C,  respectively, 
to  which  reference  is  made  as  parts  of  this  judgment. 

It  is  further  ordered,  adjudged  and  decreed  that  all  rights, 
ways,  privileges,  servitudes  and  appurtenances  connected  with 
the  property  upon  which  said  line  of  telegraph  is  to  be  erected, 
and  necessary  for  the  erection,  operation  and  maintenance  of 
said  line,  shall  also  vest  in  the  plaintiff  upon  payment  by  it 
of  the  sum  aforesaid,  and  that  the  plaintiff  pay  the  costs  of 
this  suit. 

Judgment  entered  November  23,  1912. 

Judgment  signed  November  29,  1912. 

(Signed)     Rufus  E.  Foster, 

Judge. 


No.  223. 

Judgment  where  Undertaking  to  Dissolve  Attachment. 

[Capiioji.] 

This  cause  coming  on  for  hearing  at  this,  the  November, 
1911,  adjourned  term,  and  being  heard  before  his  Honor  Boyd, 
judge  and  jury,  and  the  jury  having  answered  the  issue  sub- 
mitted, viz  :  Is  the  defendant  indebted  to  the  plaintiffs  and,  if  so, 
in  what  amount?  Answer.  Yes.  $2,916.00  (twenty-nine  hun- 
dred and  sixteen  dollars)  ;  with  interest  from  February  2, 
1911. 

It  is  now 

Considered,  adjudged  and  decreed  upon  motion  of  Locke 
Craig,  counsel  for  the  plaintiffs,  that  the  plaintiffs  have  and 
recover  judgment   against   the   defendant,   D.   J.   McDonald, 


292  SUITS  AT  LAW 

in  the  sum  of  twenty-nine  hundred  and  sixteen  dollars,  with 
interest  on  the  same  from  the  2d  day  of  February,  1911; 
and  it  further  appearing  to  the  court  from  an  inspection  of 
the  record  that  the  defendant  executed  an  undertaking  to  dis- 
solve an  attachment  in  said  cause,  conditioned  to  pay  the  plain- 
tiffs all  such  sums  as  they  might  recover  in  this  action,  with 
the  United  States  Fidelity  Company  as  surety,  it  is  now, 

Ordered  that  judgment  be  and  is  hereby  entered  against  said 
surety  for  said  sum  of  $2,916.00,  together  with  the  costs  of 
this  action  by  the  plaintiffs  in  this  behalf  incurred. 

This  13th  day  of  Januarv,   1912. 

X.  Y., 
Judge  Presiding. 


No.  223a. 

Motion  in  Open  Court  to  Determine  Equitable  Defense  in  Law 
Action  by  Court  as  Chancellor  in  Equity. 

Defendant  further  at  this  time  desires  to  move  the  court 
that  the  court  sitting  as  a  chancellor  in  equity  determine  the 
equity  issues  raised  by  the  plaintiff's  replication  to  the  defend- 
ant's fifth  defense  prior  to  a  trial  of  the  law  issues  which  are 
involved  in  this  case 


No.  223b. 

Defendant's   Reservation   of   Rights   Respecting   Certain  Re- 
quested Instructions  to  Jury,  where  Equitable  Defense. 

Defendant  earnestly  contends  that  the  issue  presented  upon 
pleadings  herein  by  the  release  pleaded  as  a  defense  in  the 
answer  herein  and  by  the  allegations  of  plaintiff's  reply  di- 
rected thereto  and  seeking  to  have  release  set  aside,  cancelled 
and  annulled,  is  purely  one  of  equitable  cognizance  to  be  tried 
by  the  court,  sitting  as  a  court  of  chancery,  and  not  by  the 
jury  heretofore  impaneled  herein. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  293 

Defendant  has  heretofore  earnestly  urged  and  does  now 
earnestly  urge  said  contention  and  has  heretofore  requested 
and  does  now  respectfully  request  that  said  issue  be  so  tried. 
In  the  event,  however,  that  the  court  should  rule  against 
said  contention,  and  deny  said  request,  and  only  in  such  event 
and  without  in  any  manner  waiving  said  contention,  defend- 
ant presents  and  requests  certain  instructions  to  the  jury 
pertaining  to  said  issue,  without  prejudice,  however,  to  its  right 
to  renew  said  contention  and  request  at  a  later  stage  in  these 
proceedings  and  either  in  this  court  or  in  an  appellate  court. 

(Signed)     Hughes  &  Dorsey, 
John  Q.  Dier, 
Attorneys  for  Defendant. 


No.  223c. 

Objection  in   Open   Court  to   Taking  Testimony   on   Entire 
Case,  where  Equitable  Defense,  until  Later  Disposed  of. 

For  the  record  I  want  to  at  this  time  object  to  the  intro- 
duction of  any  testimony  in  this  case  for  the  reason,  first, 
that  there  has  been  no  return  or  tender  of  return  to  the  de- 
fendant of  the  $750.00  consideration  paid  at  the  time  of  the 
execution  of  the  release ;  second,  that  the  issues  in  this  case 
with  reference  to  the  defendant's  fifth  affirmative  defense  raise 
issues  cognizable  only  in  equity  which  are  triable  by  the  court 
sitting  as  an  equity  court  prior  to  any  trial  of  the  law  issues 
before  and  by  the  jury. 


No.  224. 

Advisory  Verdict  (1)  on  Equitable  Defense  in  Action  at  Law,* 
and  Adoption  Thereof,  and  Judgment  Thereon. 

"We.  the  jury,  on  our  oath  do  say  we  find  that  plaintiff 
was  induced  to  execute  the  written  release  offered  in  evidence, 
by  fraudulent  representations  and  promises  made  to  plaintiff 
by  the  witness  White ;   that  said   representations  and  prom- 


294  SUITS  AT  LAW 

ises  were  material,  were  believed  and  relied  on  by  the  plaintiff, 
and  induced  the  plaintiff  to  sign  the  release  and  that  he  would 
not  have  agreed  to  and  signed  said  release  but  for  his  belief 
in  and  reliance  on  said  representations  and  promises." 

And  thereupon,  the  court  sitting  as  a  chancellor  adopts  as 
its  own  the  finding  of  facts  made  by  the  jury  as  to  the  fraudu- 
lent representations  and  promises  made  to  plaintiff  by  which 
he  was  induced  to  sign  the  release  and  settlement  of  date 
March  5,  1915,  and  set  up  as  a  fifth  defense  in  the  answer 
herein,  and  finds  that  said  release  and  settlement  was  fraudu- 
lently obtained  as  alleged  and  pleaded  in  the  reply  to  said 
answer. 

Wherefore,  it  is  considered  by  the  court  that  the  release  and 
settlement  made,  executed  and  delivered  by  plaintiff  to  de- 
fendant on  the  fifth  day  of  March,  A.  D.  1915,  under  and  by 
which  the  plaintiff  accepted  the  sum  of  seven  hundred  and 
fifty  dollars  ($750.00)  in  full  satisfaction  of  his  claim  for 
damages  against  the  defendant,  sued  upon  in  his  complaint 
herein,  be,  and  the  same  is,  hereby  vacated,  set  aside  and 
for  naught  held.  But  upon  the  condition  nevertheless  that 
the  plaintiff  pay  to  the  defendant  the  said  sum  of  seven  hun- 
dred and  fifty  dollars  ($750.00),  together  with  interest  there- 
on at  the  rate  of  eight  per  cent,  per  annum  from  the  fifth 
day  of  March,  A,  D.  1915 ;  said  payment,  however,  to  be  made 
by  crediting  the  defendant  with  said  sum  and  interest  on  its 
payment  of  the  judgment  herein  rendered  against  it  for  the 
damages  assessed  to  the  plaintiff  for  the  injuries  by  him  sus- 
tained. 

(1)  Where  a  case  is  one  of  equitable  jurisdiction  only,  the  court 
is  not  bound  to  submit  any  issue  of  fact  to  a  jury,  and  if  it  does  so 
'it  is  at  liberty  to  disregard  the  verdict  and  findings  of  the  jury  either 
by  setting  them  or  any  of  them  aside,  or  by  letting  them  stand  and 
allowing  them  more  or  less  weight  in  its  final  decree.  It  is  not 
necessary  that  the  verdict  be  formally  set  aside  if  the  court  wishes 
to  disrgard  it.  The  purpose  of  submitting  issues  of  fact  to  a  jury 
in  such  case  is  to  inform  the  conscience  of  the  court  and  aid  it  in 
making  up  its  own  judgment  upon  the  facts.  Idaho,  etc.,  Land  Co.  v. 
Bradbury,  132  U.   S.  509,  33  L.  Ed.  433;   Perego  v.  Dodge,  163  U.  S. 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  295 

160,  41  L.  Ed.  113.  That  the  verdict  of  a  jury  in  such  case  is 
merely  advisory  and  may  be  disregarded,  see  Flippen  v.  Kimball, 
87  Fed.  258. 


No.  225. 

Petition  and  Motion  that  the   Court,  Sitting  as  a  Court  of 
Chancery,   Make  Findings  and  Enter   Decree,  Not- 
withstanding Advisory  Verdict  of  the  Jury. 

[Caption.] 

And  thereafter,  on  July  26,  1916,  the  defendant  filed  a 
petition  and  motion  that  the  court,  sitting  as  a  court  of  chan- 
cery, make  findings  and  enter  decree,  notwithstanding  advi- 
sory verdict  of  the  jury,  which  is  in  the  words  and  figures 
following,  to-wit: 

Comes  now  the  Union  Pacific  Railroad  Company,  the  de- 
fendant above  named,  by  its  attorneys  and,  deeming  that  all 
issues  both  of  law  and  of  fact  presented  by  or  arising  in 
connection  with  that  portion  of  the  plaintiff's  reply,  herein 
designated  as  subdivision  IV,  being  "with  reference  to  the 
allegations  contained  in  the  fifth  affirmative  defense"  of  the 
defendant's  answer,  are  purely  of  equitable  cognizance  and 
triable  solely  by  the  court  sitting  as  a  court  of  chancery  prior 
to  and  separate  from  the  trial  by  the  court  and  a  jury,  of  all 
the  other  issues  arising  upon  and  under  the  pleadings  herein, 
hereby  respectfully  petitions  and  requests  the  court  as  follows, 
to-wit :  [Each  request  to  be  deemed,  considered  and  dealt  with 
by  the  court  as  a  separate  and  several  request,  and  not  joint 
with  the  others.] 

1.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 
herein,  now  find,  determine  and  decree  that  the  said  instru- 
ment of  release  pleaded  and  set  forth  in  the  fifth  affirma- 
tive of  defendant's  answer,  is  an  existent,  valid  and  enforcible 
contract  and  bars  plaintiff's  right  of  recovery  herein. 

2.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 


296  SUITS  AT  LAW 

herein,  find,  determine  and  decree  as  a  matter  of  fact  and  of 
law,  that  the  allegations  in  that  portion  of  the  plaintiff's  reply- 
above  referred  to,  by  reason  of  which  the  plaintiff  seeks  to 
set  aside,  cancel  and  annul  said  release,  have  not  been  sus- 
tained by  the  proof  and  that  said  release  must  stand  as  a 
valid,  existent  and  en  forcible  contract,  barring  any  right  upon 
the  part  of  the  plaintiff  to  recovery  herein. 

3.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 
herein,  find,  determine  and  decree  that  the  plaintiff  did  not, 
in  apt  time  and  as  required  by  law,  pay  back  or  return,  or 
tender  or  offer  to  pay  back  or  return  to  the  defendant  the 
consideration  theretofore  received  by  him  at  the  time  of  the 
execution  of  the  said  release,  and  that  therefore  the  attempt 
of  the  plaintiff  to  set  aside,  cancel  and  annul  said  release 
must  fail. 

4.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 
herein,  find,  determine  and  decree  that  there  was  an  absolute 
failure  of  proof  upon  the  part  of  the  plaintiff  of  any  artifice 
or  fraud  upon  the  part  or  on  behalf  of  the  defendant,  con- 
cealing or  tending  to  conceal  the  terms  of  said  contract  of 
release,  prior  to  its  execution  by  the  plaintiff  or  which  pre- 
vented the  plaintiff  from  reading  said  release  prior  ^o  or  at 
the  time  of  its  execution  by  him. 

5.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 
herein,  find,  determine  and  decree  that  no  representations, 
promises  or  agreements  made,  or  opinions  expressed  in  the 
previous  parol  negotiations  between  and  on  behalf  of  the  plain- 
tiff and  of  the  defendant,  as  to  the  terms  or  legal  effect  of 
the  resulting  written  contract  of  release,  can  be  permitted  to 
prevail,  either  at  law  or  in  equity,  over  the  plain  provisions 
and  just  interpretation  of  said  contract  of  release,  in  the  ab- 
sence of  some  artifice,  or  fraud  which  concealed  its  terms  or 
prevented  plaintiff  from  reading  it ;  that  there  is  an  absolute 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  297 

failure  of  proof  upon  the  part  of  the  plaintiff  of  any  such 
artifice  or  fraud  which  concealed  or  tended  to  conceal  the  terms 
of  said  contract  of  release  prior  to  its  execution  by  the  plain- 
tiff, or  which  prevented  the  plaintiff  from  reading  said  release ; 
and  that  therefore,  said  release  stands  and  must  be  held  to  be 
a  valid,  existent  and  enforcible  contract  barring-  any  right 
of  recovery  by  the  plaintiff  herein. 

6.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 
herein,  find,  determine  and  decree  that  none  of  the  represen- 
tations or  promises  made,  or  opinions  expressed  in  the  pre- 
vious parol  ngotiations  by  defendant's  claim  agent,  White, 
as  testified  to  by  and  on  behalf  of  the  plaintiff,  even  if  be- 
lieved and  found  by  the  court  to  have  been  established  by 
clear,  convincing  and  unequivocal  testimony,  notwithstanding 
the  making  of  said  representations  or  promises  or  the  ex- 
pressing of  said  opinions  was  earnestly  and  vigorously  denied 
by  said  White  and  by  the  defendant's  witness,  Lucas,  who, 
it  was  admitted  by  the  plaintiff,  was  present  when  said  repre- 
sentations and  promises  so  claimed  to  have  been  made  were 
made  and  said  opinions  expressed,  can  not  in  law  or  equity 
constitute  fraudulent  representations  warranting  or  justifying 
the  setting  aside,  cancelling  and  annulling  of  said  release. 

7.  That  the  court,  sitting  as  a  court  of  chancery,  notwith- 
standing the  advisory  verdict  of  the  jury  heretofore  returned 
herein,  find,  determine  and  decree  that  said  contract  of  re- 
lease was  actually  executed  by  the  plaintiff;  that  in  considera- 
tion therefor  defendant  paid  plaintiff  and  plaintiff  received 
and  retained -a  substantial  sum  of  money,  to-wit,  seven  hun- 
dred fifty  dollars  ($750.00)  ;  that  prior  to  the  execution  of 
said  release  by  plaintiff,  said  release  was  read  by  the  plain- 
tiff, or  read  to  the  plaintiff,  by  plaintiff's  representative  and 
agent,  Mrs.  Katie  Hoffman;  that  plaintiff  was  in  no  manner 
hindered  or  prevented  by  defendant  from  reading  or  having 
read  to  him  and  fully  understanding  said  contract  of  release 


298  SUITS  AT  LAW 

and  all  of  its  terms  prior  to  the  execution  thereof,  and  that 
said  release  is  an  absolute  bar  to  any  right  of  recovery  by 
plaintiff  in  this  action. 

(Signed)     Hughes  &  Dorsey, 
John  Q.  Dier, 
Attorneys  for  Defendant. 


No.  226. 

Judgment     for     Plaintiff     upon     Sustaining     Demurrer     to 

Answer  (1). 

This  day  this  cause  came  on  to  be  heard  upon  the  demurrer 
of  the  plaintiff  to  the  answer  of  the  defendant,  and  was  argued 
by  counsel,  and  the  court  being  fully  advised  in  the  premises, 
is  of  the  opinion  and  does  hereby  order  that  said  demurrer 
be,  and  the  same  hereby  is,  sustained,  to  which  ruling  of  the 
court  said  defendant,  by  its  counsel,  excepts. 

And  thereupon  said  defendants,  not  asking  to  plead  further, 
it  is  considered  and  adjudged  by  the  court  that  the  said  plain- 
tiff, The  A.  B.  Banking  Company,  recover  against  the  said 

defendant,  The  City  of  ,  said  sum  of  dollars  and 

cents,  the  amount  claimed  in  the  petition,  with  interest 

computed  up  to ,  the  first  day  of  the  present  term  of  this 

court,  together  with  its  costs  herein  expended  taxed  at  $ , 

and  that  said  defendant  pay  its  own  costs. 

(1)  It  is  not  necessary  or  proper  to  except  to  judgment. 


No.  227. 

Remittitur  (1) 
[Caption.] 

Now  comes  the  plaintiff  in  the  above  entitled  action  within 
thirty  days  from  the  order  of  the  honorable  court,  and  remits 


PROCESS,  MOTIONS,  JUDGMENT,  ETC.  299 

all  damages  in  the  above  entitled  cause  in  excess  of  three 

thousand  dollars. 

By  her  Attorneys, 

Asa  p.  French, 
Daniel  A.   Shea. 

(1)   See  Foster's  Federal  Practice,  5th  ed.,  page  1601. 


No.  228. 

Plaintiff,  a  Minor,  by  His  Testamentary  Guardian,  Consents 
to  Reduction  of  Assessed  Damages. 

[Caption.] 

The  court  having  expressed  the  opinion  that  the  damages 
assessed  by  the  jury  in  the  above  entitled  action,  to-wit,  twenty- 
seven  thousand  five  hundred  dollars  ($27,500.00),  are  exces- 
sive, and  having  offered  to  the  plaintiif  the  choice  of  remitting 
the  sum  of  seventeen  thousand  five  hundred  dollars  ($17,- 
500.00)  of  said  assessment  of  damages,  or  of  submitting  to 
an  order  of  the  court  granting  a  new  trial  in  said  cause,  the 
plaintiff,  upon  the  said  suggestion  of  the  court,  comes  into 
court  in  his  own  person,  and  by  his  guardian  and  attorneys, 
and  remits  of  record  the  sum  of  seventeen  thousand  five  hun- 
dred dollars  ($17,500.00)  of  said  verdict,  and  consents  that 
the  same  may  be  for  the  sum  of  ten  thousand  dollars  ($10,- 
000.00),  and  to  accept  judgment  for  the  same. 

J.  C.  Pritchard, 
Circuit  Judge. 


No.  229. 

Order    Denying    Motion    for    a    New    Trial    where    Verdict 

Reduced, 

[Caption.] 

The  above  entitled  action  having  regularly  come  on  for 
trial  before  Hon.  Thomas  I.  Chatfield,  district  judge,  and  a 
jury  on  the  30th  day  of  March,  1914,  and  the  issues  having 


300  SUITS  AT  LAW 

been  tried,  and  the  j«ry  having,  on  the  4th  day  of  April,  1914, 
rendered  a  verdict  upon  the  merits  in  favor  of  the  plaintiff 
and  against  the  defendant  for  the  sum  of  fifty  thousand 
dollars  ($50,000),  and  the  defendant  having  immediately  after 
the  rendition  of  the  said  verdict,  moved  to  set  the  same  aside 
upon  the  ground,  among  others,  that  it  was  excessive,  and 
the  court  having  entertained  the  said  motion  and  having  there- 
after, and  after  due  deliberation,  rendered  its  decision  in  writ- 
ing reducing  the  said  verdict  to  the  sum  of  thirty-six  thou- 
sand dollars  ($36,000)  and  directing  that  if  the  plaintiff 
agrees  and  consents  to  the  said  reduction,  then  in  all  other 
respects  and  upon  all  other  grounds,  the  said  motion  be  de- 
nied; and  an  order  having  thereupon  and  on  the  8th  day  of 
May,  1914,  been  made  requiring  the  plaintiff  through  his 
attorney  to  file  on  or  before  May  12,  1914,  with  the  clerk 
of  this  court,  his  consent  in  writing  that  the  said  verdict  shall 
be  reduced  to  the  sum  of  thirty-six  thousand  dollars  ($36,000), 
or  otherwise  to  move  with  respect  to  the  verdict  for  the 
amount  in  excess  of  that  sum:  and  the  plaintiff  having  there- 
after and  on  the  9th  day  of  May,  1914,  through  his  attorney, 
filed  with  the  clerk  of  this-  court  his  consent  in  writing  to 
the  reduction  of  said  verdict  to  the  sum  of  thirty-six  thousand 
dollars  ($36,000)  ;  now,  upon  motion  of  Baltrus  S.  Yankaus, 
attorney  for  the  plaintiff,  it  is: 

Ordered,  that  the  said  motion  be,  and  the  same  hereby  is 
in  all  other  respects  denied. 

Thomas  I.  Chatfield, 
United  States  District  Judge. 


No.  230. 

Alternative  Order  Reducing  Verdict. 

[Caption.] 

The  above  entitled  action  having  come  on  regularly  for 
trial  in  this  court,  upon  the  30th  day  of  March,  1914,  before 
the  Honorable  Thomas  I.  Chatfield,  judge,  and  a  jury,  and 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  301 

the  jury  having,  on  the  4th  clay  of  April,  1914,  rendered  a 
verdict  in  favor  of  the  plaintiff,  Matt  Yurkonis,  and  against 
the  defendant.  The  Delaware,  Lackawanna  and  Western  Rail- 
road Company,  in  the  sum  of  fifty  thousand  dollars  ($50,- 
000.00),  and  a  motion  having  been  made  by  the  defendant, 
upon  the  return  of  said  verdict,  to  set  the  same  aside  on  the 
ground,  among  others,  that  it  was  excessive,  and  that  the  said 
motion  having  been  duly  heard,  and  after  hearing  F.  W. 
Thomson,  one  of  the  defendant's  attorneys,  in  support  thereof, 
and  Baltrus  S.  Yankaus,  Esq.,  attorney  for  plaintiff,  and 
Thomas  J.  O'Neill,  Esq.,  of  counsel  for  plaintiff,  in  opposition 
thereto,  and  due  deliberation  having  been  had  thereon,  it  is : 
Ordered,  that  the  plaintiff,  through  his  attorney,  Baltrus  S. 
Yankaus,  E.sq.,  file  on  or  before  May  12,  1914,  with  the  clerk 
of  this  court,  his  consent  in  writing  that  the  said  verdict 
shall  be  reduced  to  the  sum  of  thirty-six  thousand  dollars 
($36,<X)0),  or  make  some  application  with  respect  to  the  ver- 
dict for  the  amount  in  excess  of  that  sum. 

Enter,  Thomas  T.  Chatfield, 

Judge  of  the  United  States  District  Court. 
Filed  and  entered  May  8,  1914. 


No.  231. 

Judgment  on  Reduced  Verdict. 

[Caption.] 

The  above  entitled  action  having  been  regularly  reached 
for  trial  before  Honorable  Thomas  I.  Chatfield,  district  judge, 
and  a  jury  on  the  30th  day  of  March,  1914,  and  the  issues 
having  been  tried,  and  the  jury  having  on  the  4th  day  of 
April,  1914,  rendered  a  verdict  upon  the  merits  in  favor  of 
the  plaintiff  and  against  the  defendant  for  the  sum  of  fifty 
thousand  dollars  ($50,000.00)  ;  and  the  court  having  there- 
after reduced  the  said  verdict  to  the  sum  of  thirty-six  thou- 
sand dollars  ($36,000.00),  and  the  plaintiff  having  in  writing 


302  SUITS    AT    LAW. 

consented  to  such  reduction ;  and  the  costs  and  disbursements 
of  the  plaintiff  having  been  duly  taxed  by  the  clerk  of  this 
court  at  the  sum  of  ninety-nine  and  80/100  dollars;  it  is  on 
motion  of  Baltrus  S.  Yankaus,  attorney  for  the  plaintiflf, 

Ordered  and  adjudged  that  the  plaintiff,  Matt  Yurkonis, 
do  recover  of  and  from  the  defendant,  The  Delaware,  Lacka- 
wanna &  Western  Railroad  Company,  the  sum  of  thirty-six 
thousand  dollars  ($36,000.00)  damages,  together  with  the  sum 
of  ninety-nine  and  80/100  dollars  costs,  amounting  in  the 
aggregate  to  the  sum  of  thirty-six  thousand  and  ninety-nine 
and  80/100  dollars,  and  that  plaintiff  have  execution  therefor. 

Judgment  signed,  entered  and  filed,  this day  of , 

1917.  A.  B., 

Clerk. 


No.  232. 

(Another  form.) 
Judgment  on  Reduced  Verdict. 

[Caption.l 

This  cause  coming  on  to  be  heard  before  his  Honor,  J.  C. 
Pritchard,  circuit  judge,  and  a  jury  in  the  district  court  held 
at  Asheville,  in  the  state  of  North  Carolina,  and  having  been 
heard,  the  plaintiff  at  the  close  of  the  testimony  took  a  nol. 
pros,  as  to  the  defendants,  The  Western  North  Carolina  Rail- 
road Company  and  Luther  F.  Long. 

The  following  issues  were  submitted  to  the  jury: 

L  "Was  the  plaintiff  by  the  negligence  of  the  defendant 
railway  company,  as  alleged  in  the  complaint?" 

IL  "Did  the  plaintiff,  Ernest  Thomason,  by  his  own  negli- 
gence contribute  to  his  injury,  as  alleged  in  the  answer?" 

in.  "What  damage,  if  any,  is  the  plaintiff,  Ernest  Thom- 
ason, entitled  to  recover?" 

And  the  jury  having  answered  all  of  the  issues  in  favor  of 
the  plaintiff;  that  is  to  say,  having  answered  the  first  issue 
"Yes/'  the  second  issue  "No,"  and  having  answered  the  third 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  303 

issue  twenty-seven  thousand  five  hundred  dollars,  and  having 
assessed  the  plaintiff's  damages  at  that  amount,  and  his  honor. 
Judge  Pritchard,  having  expressed  the  opinion  that  the  amount 
of  said  damages,  so  assessed  in  favor  of  the  plaintiff,  is  exces- 
sive, and  the  plaintiff  having  remitted  of  record  seventeen 
thousand  five  hundred  dollars  of  the  amount  of  said  verdict, 
whereby  the  said  verdict  was  reduced  to  the  sum  of  ten  thou- 
sand dollars: 

It  is  now,  on  motion  of  James  H.  Merrimon  and  Locke 
Craig,  attorneys  for  the  plaintiff,  ordered  and  adjudged  and 
decreed  that  the  plaintiff,  Ernest  Thomason,  have  and  recover 
of  the  defendant,  the  Southern  Railway  Company,  the  sum 

of  ten  thousand  dollars,  with  interest  thereon  from  the  

day  of  September,  19 — ,  together  with  the  costs  of  this  cause, 
to  be  taxed  by  the  clerk. 

J.  C.  Pritchard, 
Circuit  Judge. 


No.  233. 

(Another  form.) 
Judgment  for  Plaintiff  upon  Remitting  Part  of  Verdict. 

[Caption.] 

This  cause  having  come  on  to  be  heard  before  the  Hon.  C. 
D.,  district  judge,  upon  the  motion  for  a  new  trial  heretofore 
made,  and  the  briefs  of  attorneys  for  both  sides  relative  there- 
to, and  after  due  consideration  thereof  the  court  is  pleased 
to  overrule  the  said  motion  for  a  new  trial  upon  all  the 
grounds  therein  contained,  except  that  of  excessive  verdict, 
and  upon  this  ground,  upon  plaintiff's  entering  a  remittitur  of 

dollars,  making  the  judgment  of  the  court  stand  at 

dollars,  the  court  is  pleased  to  overrule  the  motion  for  a  new 
trial  up>on  that  ground  also. 

Thereupon  came  the  attorneys  for  plaintiff  and  enter  a 
remittitur  of dollars  as  hereinbefore  suggested. 


304  SUITS    AT   LAW. 

It  is  therefore  considered  by  the  court  that  defendant's  mo- 
tion for  a  new  trial  herein  be  overruled  and  for  nothing  held, 
and  that  the  plaintiff  recover  of  the  defendant  the  sum  of 
dollars  and  the  costs  of  this  cause,  for  wtiich  let  execu- 
tion issue. 


No.  234. 

Judgment  for  Plaintiff,  Overruling  Motion  for  New  Trial  and 
Settling  Bill  of  Exceptions. 

[Caption.'l 

This  day  this  cause  was  heard  upon  the  motion  of  the  said 
defendant,  for  an  order  setting  aside  the  verdict  heretofore 
rendered  herein  and  for  a  new  trial  hereof,  and  was  argued 
by  counsel. 

On  consideration  whereof,  the  court  being  fully  advised 
in  the  premises,  doth  find  that  said  motion  is  not  well  taken 
and  should  be  overruled,  and  that  a  judgment  should  be  ren- 
dered upon  said  verdict. 

It  is  therefore  ordered  and  adjudged  by  the  court  that  the 
motion  of  said  defendant  for  a  new  trial  be,  and  the  same 
hereby  is,  overruled,  and  that  the  said  plaintiff,  A.  B.,  recover 
of  said  defendant.  The  C.  &  D.  Railroad  Company,  the  sum 

of  dollars,   together  with   his   costs   herein   expended, 

taxed  at  $ . 

And  thereupon  came  the  said  defendant,  and  presented  to 
the  court  its  bill  of  exceptions  herein,  which  having  been  ex- 
amined by  the  court  and  found  in  all  respects  to  be  true,  and 
correct,  is  hereby  approved,  allowed,  signed  and  when  filed, 
is  ordered  to  be  made  a  part  of  the  record  hereof. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  305 

No.  235. 

Verdict  and  Judgment  in  Ejectment. 

[Caption.'] 

Comes  again  the  jury  heretofore  empaneled,  and  after  hear- 
ing all  the  evidence,  the  arguments  of  the  counsel  of  the  re- 
spective parties,  and  the  charge  of  the  court,  returns  into  court 
the  following  verdict : 

That  they  find  that  the  plaintiffs  are  the  owners  in  fee  and 
entitled  to  and  in  possession  of  the  following  lands  situated 
in county, ,  to  wit:  [Description  of  land.] 

As  to  the  other  land  herein  sued  for,  not  embraced  in  the 
above  descriptions,  the  jury  finds  the  plaintiffs  are  not  entitled 
to  the  same. 

It  is  therefore  considered,  ordered  and  adjudged,  that  the 
plaintiffs  do  have  and  recover  of  and  from  the  defendants  sev- 
erally the  lands  hereinbefore  described,  found  by  the  verdict 
of  the  jury  to  belong  to  them  in  fee,  and  that  the  plaintiffs  do 
have  and  retain  the  possession  of  such  lands  under  and  in 
accordance  with  their  said  title ;  and  that  as  to  the  lands  herein 
sued  for,  not  embraced  by  the  verdict  of  the  jury  in  favor  of 
the  plaintiffs,  the  defendants  go  hence  without  day;  and  that 
the  plaintiffs  recover  of  the  defendants  all  their  costs  herein 
expended,  and  that  execution  issue  therefor.  No  costs  are 
adjudged  against  the  defendants,  E.  F.  and  G.  H.,  as  they 
have  not  set  up  any  claim  to  the  lands  recovered^  by  the  plain- 
tiffs, and  the  plaintiffs  will  pay  the  costs  as  to  them,  for  which 
execution  may  issue. 


No.  236. 

[Caption.]  Motion  for  a  New  Trial. 

The  defendant  moves  that  the  verdict  herein  rendered  be 
vacated  and  a  new  trial  awarded  for  the  following  reasons : 
First.  Said  verdict  was  not  sustained  by  sufficient  evidence. 


306  SUITS    AT    LAW. 

Second.  There  was  no  testimony  tending  to  sustain  the  ver- 
dict. 

Third.  Said  verdict  was  contrary  to  law. 

Fourth.  The  court  erred  in  refusing  to  instruct  the  jury  to 
render  a  verdict  for  the  defendant. 

Fifth.  The  court  erred  in  refusing  each  of  defendant's  spe- 
cial charges,  numbered  respectively  i,  2,  3  and  4. 

Sixth.  The  court  erred  in  certain  particulars  of  its  general 
charge,  excepted  to  by  the  defendant  at  the  time. 

Seventh.  There  were  other  errors  of  law  appearing  upon 
the  trial,  prejudicial  to  the  defendant.  R.  X,, 

Attorney  for  Defendant. 


No.  237. 

Motion  for  New  Trial  by  Defendant  (i). 

[^Caption.'\ 

Now  comes  defendant  and  moves  the  court  to  set  aside  the 
verdict  of  the  jury  and  to  grant  it  a  new  trial  herein  for  the 
following  reasons : 

First.  Court  erred  in  overruling  defendant's  motion  to 
instruct  the  jury  to  find  for  defendant  made  at  the  close  of  all 
the  testimony. 

Second.  Court  erred  in  so  much  of  its  general  charge  to  the 
jury  as  left  to  it  to  determine  whether  or  not  plaintiff  was  a 
passenger  at  the  time  of  the  injury,  as  charged,  and  that  the 
duty  of  defendant  towards  plaintiff  was  that  due  a  passenger, 
and  that  the  care  and  caution  to  be  exercised  by  her  was  that 
of  a  passenger,  if  they  believed  she  was  such,  and  each  and 
every  portion  of  the  charge  that  grew  out  of  leaving  that 
question  to  the  jury. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  307 

Third.  The  verdict  of  the  jury  is  contrary  to  law  and 
against  the  weight  of  evidence. 

Fourth.  The  verdict  is  excessive.  R.  Y., 

Attorney  for  Defendant. 

(i)  The  defendant  waives  his  exception  to  motion  to  instruct  for 
defendant  at  close  of  plaintiff's  evidence  by  putting  in  his  case.  Colum- 
bia, etc,   R.   Co.   vs.   Hawthorne,   144   U.    S.   202. 


No.  238. 

Motion  for  New  Trial  Where  Court  Instructed  Jury  to  Find 

for  Defendant. 

ICaption.^ 

And  now  comes  the  said  plaintiff,  by  R.  S.,  his  attorney, 
and  moves  the  court  now  here  to  set  aside  the  verdict  and 
judgment  in  said  cause  and  grant  a  new  trial  therein  for  the 
reason  that : 

The  court  erred  in  instructing  the  jury  that  the  plaintiff 
can  not  recover  under  the  proofs  in  this  cause  and  directing  a 
verdict  for  the  defendant. 

This  motion  is  based  on  the  records  and  files  in  said  cause 
and  the  testimony  taken  on  the  trial  thereof. 

R.  X., 
Attorney  for  Plaintiff. 


No.  239. 

Order  Setting  Aside  Order  Sustaining  Motion  for  New  Trial. 

ICaption.l 

The  order  of  the  court  heretofore  made  granting  the  motion 
for  a  new  trial  is  now  set  aside  for  the  reason  that  counsel  for 
the  plaintiff  misunderstanding  the  order  of  the  court  as  to  the 
time  for  hearing  the  motion  for  a  new  trial  were  not  present. 
Leave  is  given  to  counsel  for  both  sides  to  submit  briefs  within 
ten  days  from  this  order.  Briefs  of  counsel  shall  be  served 
upon  opposing  counsel. 


308  '  SUITS    AT    LAW. 

No.  240. 

Order  Sustaining  Motion  for  New  Trial  and  Ordering  a  New 

Trial. 

ICaption.'] 

This  cause  being  heard  on  the  motion  of  the  defendant  to 
set  aside  the  verdict  of  the  jury  heretofore  rendered  herein 
and  for  a  new  trial,  for  reasons  set  forth  in  said  motion,  which 
was  argued  by  counsel  and  the  court  being  fully  advised  in 
the  premises  is  of  the  opinion  and  does  hereby  sustain  said 
motion.  The  verdict  is  accordingly  vacated  and  a  new  trial 
granted. 


No.  241. 

Order  Overruling  Motion  for  New  Trial  and  Judgment  for 
Defendant  upon  the  Verdict. 

^Caption.'] 

This  cause  again  came  on  to  be  heard  upon  the  motion  of 
the  plaintiff  for  a  new  trial  of  this  cause,  for  reasons  set  forth 
in  said  motion,  and  was  argued  by  counsel  and  the  court 
being  fully  advised  in  the  prerhises  do  overrule  said  motion, 
to  which  ruling  of  the  court,  said  plaintiff,  by  his  attorneys, 
excepts. 

It  is  thereupon  considered  and  adjudged  by  the  court  that 
said  defendant  go  hence  without  day  and  recover  of  the  said 

plaintiff  its  costs  herein  expended,  taxed  at  $ and  that 

said  plaintiff  pay  his  own  costs,  to  which  judgment  of  the 
court,  said  plaintiff,  by  his  attorneys,  excepts.  And  for  good 
cause  shown,  leave  is  given  the  plaintiff  to  prepare  and  have 
allowed  and  signed  his  bill  of  exceptions  in  sixty  days  from 
this  date. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC,  309 

No.  242. 

Motion  for  New  Trial  (1). 

[Caption.] 

And  now  comes  defendant,  by  its  counsel,  and  moves  the 
court  to  set  aside  the  verdict  heretofore  rendered  herein,  and 
to  grant  a  new  trial  in  this  cause,  and  for  grounds  for  said 
motion  presents  and  shows  to  the  court  the  following,  to-wit: 

1.  The  court  admitted  on  the  trial  improper  evidence  on  the 
part  of  the  plaintiff. 

2.  The  court  refused  to  admit  proper  evidence  offered  by 
the  defendant. 

3.  The  court  improperly  refused  and  denied  the  defendant's 
motion  for  peremptory  instruction  at  the  close  of  the  plaintiff's 
evidence,  and  refused  to  give  to  the  jury  the  peremptory  in- 
struction asked  by  the  defendant. 

4.  The  court  improperly  denied  the  defendant's  motion  for 
peremptory  instruction  at  the  close  of  all  the  evidence  and 
refused  to  give  to  the  jury  the  peremptory  instruction  offered 
by  the  defendant. 

5.  The  court  gave  improper  instructions  to  the  jury. 

6.  The  verdict  was  contrary  to  the  law. 

7.  The  verdict  was  contrary  to  the  evidence. 

Chicago  &  North  Western  Railway  Company, 

By  A.  B., 
(1)  See  No.  236.  Its  Attorney. 


No.  243. 

Motion     for    a    New     Trial,     and     Order     Overruling,     and 

Judgment  (1). 

[Caption.] 

Now  comes  the  defendant  in  the  above  entitled  cause  and 
moves  the  court  to  set  aside  the  verdict  of  the  jury  herein  and 
grant  it  a  new  trial  of  said  cause  for  the  following  reasons : 

1.  The  court  committed  error  in  overruling  the  defendant's 
objection  to  the  introduction  of  any  testimony  under  the  peti- 


310  ■  SUITS    AT    LAW. 

tion,  interposed  at  the  beginning  of  the  trial,  to  which  ruling 
defendant  duly  excepted  at  the  time. 

2.  The  court  committed  error  in  the  exclusion  of  competent, 
relevant,  material  and  proper  evidence  offered  on  behalf  of  the 
defendant,  to  which  action  of  the  court  in  excluding  such  evi- 
dence the  defendant  duly  excepted  at  the  time. 

3.  The  court  committed  error  in  admitting  incompetent,  ir- 
relevant, immaterial  and  improper  evidence  offered  on  behalf 
of  the  plaintiff  over  the  objections  and  exceptions  of  defendant 
duly  made  at  the  time. 

4.  The  court  committed  error  in  overruling  the  demurrer 
to  the  plaintiff's  evidence  offered  and  filed  on  behalf  of  the 
defendant  at  the  close  of  plaintiff's  case,  to  which  action  and 
ruling  of  the  court  the  defendant  duly  excepted  at  the  time. 

5.  The  court  committed  error  in  refusing  to  give  to  the  jury 
the  peremptory  instruction  requested  by  and  on  belialf  of  tlie 
defendant  at  the  close  of  the  entire  case  to  which  action  of  the 
court  in  refusing  to  give  said  peremptory  instruction  defend- 
ant duly  excepted  at  the  time. 

6.  The  court  committed  error  in  the  refusal  to  give  to  the 
jury  of  each  and  every  of  the  instructions  requested  by  and 
on  behalf  of  the  defendant  and  refused  by  the  court  he'\ng  in- 
structions numbered  1,  4,  5,  8,  9,  10,  12,  to  which  action  of 
the  court  in  refusing  to  give  said  instructions  and  in  the  re- 
fusal to  give  each  of  them  defendant  duly  excepted  at  the  time. 

7.  Because  the  verdict  is  against  the  weight  of  the  evidence. 

8.  Because  the  verdict  is  against  the  law  and  the  evidence. 

9.  Because  under  the  pleadings  and  all  of  the  evidence  in 
the  case  the  verdict  should  be  in  favor  of  the  defendant. 

10.  Because  the  verdict  is  the  result  of  bias,  passion  and 
prejudice  upon  the  part  of  the  jury. 

A.  B.  and  C.  D., 
Attorneys  for  Defendant. 
(1)   See  No.  241. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  311 

No.  244. 

Order  Overruling  Motion  for  New  Trial  and  Judgment  (1). 

[Caption.] 

Now  on  this  26th  clay  of  June,  A.  D.  1913,  this  cause  come 
on  for  decision  upon  the  motion  of  tlie  defendant  for  a  new 
trial,  the  same  having-  been  heretofore  submitted  to  the  court 
and  taken  under  advisement,  and  the  court  being  fully  advised 
in  the  premises: 

It  is  ordered,  adjudged  and  decreed  that  said  motion  be  and 
the  same  hereby  is  overruled  and  denied,  to  which  ruling  of 
the  court  the  defendant  excepted  and  excepts. 

Thereupon,  it  is  by  the  court  ordered,  adjudged  and  decreed 
that  the  plaintiff,  Fred  Harvey,  do  have  and  recover  of  and 
from  the  defendant.  United  Kansas  Portland  Cement  Com- 
pany, the  sum  of  five  thousand  dollars  ($5,000.00),  and  his 
costs  herein  expended  to  be  by  the  clerk  taxed;  and  this  judg- 
ment shall  bear  interest  at  the  rate  of  six  per  cent,  per  annum 
from  the  date  of  tlie  rendition  thereof,  to  which  judgment  the 
defendant  excepted  and  excepts. 

It  is  further  ordered  that  the  defendant  be  granted  until 
the  first  day  of  November,  1913,  to  prepare  and  present  for 
settlement  bill  of  exceptions. 

(1)  See  No.  241. 


No.  245. 

Order  Overruling  Motion  for  New  Trial,  Motion  in  Arrest, 

and  Judgment. 

[Caption.] 

This  cause  having  heretofore  come  on  to  be  heard  upon  the 
motion  of  the  defendant  for  a  new  trial  and  the  court  having 
considered  said  motion  and  being  now  fully  advised  in  the 
premises,  it  is  ordered  that  the  motion  for  a  new  trial  be  and 
the  same  is  hereby  overruled,  to  which  ruling  said  defendant 
excepts. 


312  SUITS    AT    LAW. 

It  is  further  ordered,  that  the  motion  of  said  defendant  in 
arrest  of  judgment  be  and  the  same  is  hereby  overruled,  to 
which  ruling  said  defendant  excepts. 

It  is  thereupon  considered  and  adjudged  by  the  court  that 
said  plaintiff  do  have  and  recover  of  and  from  said  defendant, 
Kawin  and  Company,  the  sum  of  $11,119.47,  in  damages,  so 
as  aforesaid  assessed  by  the  jury  herein,  together  with  its 
costs  to  be  taxed  and  that  execution  issue  therefor. 

It  is  further  ordered,  that  said  defendant  present  and  file 
its  bill  of  exceptions  in  sixty  days  from  this  date  and  a  bond 
in  the  sum  of  $15,000.00  with  security  to  be  approved  by  the 
clerk  in  thirty  days  from  this  date. 


No.  246. 

Entry  on  Motion  for  New  Trial  (1). 

[Caption.] 

This  day  came  the  parties,  and  this  cause  came  on  to  be 
heard  upon  the  motion  of  the  defendants  to  set  aside  the  ver- 
dict heretofore  rendered  herein,  and  for  a  new  trial,  and  the 
same  was  argued  by  counsel;  and  the  court,  being  fully  ad- 
vised in  the  premises,  is  of  the  opinion  that  as  to  the  defend- 
ants, S.  M.  and  G.  H.,  as  receivers  of  The  C.  &  D.  Railway 
Company,  the  same  should  be,  and  is  hereby,  overruled ;  and 
the  court,  on  motion  of  said  defendants'  counsel,  fixed  the 
time  in  which  said  defendants  may  prepare  and  file  their  bill 
of  exceptions  on  or  before  fifty  (50)  days  from  this  date.  And 
as  to  the  defendant.  The  S.  R.  Belt  Railway  Company,  the 
court  is  of  the  opinion  that  said  verdict  is  contrary  to  law 
and  the  evidence,  and  said  motion  for  a  new  trial  as  to  said 
defendant  is  therefore  allowed,  and  said  verdict  set  aside  and 
the  judgment  heretofore  entered  in  this  case  on  said  verdict 
against  said  The  S.  R.  Belt  Railway  Company  is  hereby 
vacated,  and  said  defendant  dismissed. 

(1)  Taken  from  Herrick  et  al.  Receiver  v.  Kerr.     (Not  reported.) 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC,  313 

No.  247. 

Petition  for  Extension  of  Time  within  which  to  Make  Motion 

for  New  Trial. 

[Caption.] 

To  the  Honorable  Edward  T.  Sanford,  Judge : 

Your  petitioner,  H.  H.  Shelton,  respectfully  represents  to 
the  court  that  he  has  been  employed  in  the  above  case  to  repre- 
sent the  defendants  in  a  proposed  appeal  of  this  case  to  the 
United  States  Circuit  Court  of  Appeals,  Sixth  Circuit;  that 
petitioner  did  not  appear  in  the  case  in  the  trial  before  this  hon- 
orable court,  and  he  is,  therefore,  not  as  familiar  with  the 
record  as  he  would  otherwise  be.  A  verdict  was  rendered 
against  the  defendants  on  Monday,  October  11,  1915,  and, 
under  rule  15  of  your  honor's  court,  a  motion  for  a  new  trial 
must  be  filed  not  later  than  October  16,  1915.  The  proceed- 
ings in  your  honor's  court  were  stenographically  reported,  but 
the  stenographer  will  be  unable  to  furnish  your  petitioner 
with  a  copy  thereof  until  Saturday,  October  16.  Petitioner, 
in  preparing  said  motion  for  a  new  trial,  will  be  unable  to 
comply  with  the  rules  of  your  honor's  court  covering  the 
matter  to  be  set  forth  in  said  motion,  where  the  matter  ob- 
jected to  involves  the  admission  or  exclusion  of  evidence  be- 
cause, until  he  receives  said  stenographic  report  he  will  be 
unable  to  set  forth  in  said  motion  the  evidence  admitted  or 
excluded,  to  the  court's  action  concerning  which  objection 
is  made. 

Petitioner  further  states,  however,  that  he  will  use  his  best 
efforts  to  have  said  motion  filed  wn'thin  the  prescribed  time, 
and  he  further  states  that,  as  he  now  believes,  said  motion 
will  not  involve  to  any  appreciable  extent  the  facts  in  the  case, 
but  that  said  motion  will  raise  questions  of  law.  For  that 
reason  petitioner  believes  that  it  will  not  greatly  inconvenience 
the  court  in  granting  an  extension  of  time  within  which  to 
file  said  motion. 


314  SUITS    AT    LAW. 

Petitioner  has  been  engaged  in  trying  other  cases  in  your 
honor's  court  since  his  employment  in  this  case  and  only 
reached  his  office  last  night.  He  is  compelled  to  go  to  Nash- 
ville, Tennessee,  today,  and  will  probable  be  detained  there 
until  Friday. 

Petitioner,  therefore,  asks  tliat,  in  the  event  he  is  unable 
to  file  his  said  motion  for  a  new  trial  on  or  before  October 
16,  1915,  he  be  given  five  days  additional  time  within  which 
so  to  do. 

H.   H.    S HELTON, 

{AMdavit.'] 


No.  248. 

Entry  of  Trial  in  Progress ;  Verdict  for  Defendant  by  Direction 

of  Court. 

[Caption.'] 

This  day  again  came  the  parties  by  their  attorneys,  and  also 
came  the  jury  heretofore  impaneled  and  sworn  herein,  and  the 
trial  proceeded.  And  the  said  jury  having  heard  all  the  evi- 
dence adduced  on  behalf  of  the  plaintiff  and  a  part  of  the  evi- 
dence adduced  on  behalf  of  the  defendant,  were  directed  by  the 
court  to  find  for  the  plaintiff.  And  now  come  said  jury  with 
their  verdict  in  writing,  which  verdict  reads  and  is  in  the  words 
and  figures  following,  to-wit :  "In  the  district  court  of  the 
United  States,  northern  district  of  Ohio,  eastern  division. 
Manuel  Llera,  Plaintiff',  vs.  The  Canton-Hughes  Pump  Com- 
■pany.  Defendant.  No.  8035,  Law.  •  We,  the  jury  on  the  issue 
joined,  find  for  the  plaintiff,  and  do  assess  his  damages  in  the 
sum  of  forty-three  hundred  seventeen  16-100  dollars  ($4,- 
317.16).    J.  W.  Baker,  Foreman." 

It  is,  therefore,  considered  and  adjudged  by  the  court,  that 
said  plaintiff  recover  of  said  defendant,  the  sum  of  forty-three 
hundred  and  seventeen  and  16-100  dollars  ($4,317.16),  so  as 
aforesaid  assessed  by  said  jury,  together  with  his  costs  herein 

expended,  taxed  at  $ ,  and  that  said  defendant  pay  its  own 

costs. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  315 

No.  249. 

Affidavit  in  Support  of  Motion  to  Set  Aside  a  Verdict  Reached 
by  Improper  Method  (1). 

[Caption.] 

D.  J.  McDonald,  being  duly  sworn,  in  addition  to  the  affi- 
davit lieretofore  filed  in  support  of  his  motion  to  set  aside  the 
verdict  Df  the  j  ury,  says : 

That  one  of  the  jurors  who  tried  this  case  stated  to  this 
affiant,  since  the  trial,  that  when  the  jury  retired  to  the  jury 
room  for  the  consideration  of  the  case,  that  the  foreman,  Dr: 
Gillespie,  proposed  to  the  jury  that  each  juror  write  down  on  a 
piece  of  paper  the  amount  he  thought  the  plaintiffs  were  en- 
titled to  recover  and  that  the  amounts  be  added  together  and 
then  divided  by  twelve  and  let  the  result  be  the  amount  the 
jury  should  return  as  their  verdict;  that  the  foreman  stated 
that  he  had  done  this  in  a  number  of  cases  wherein  he  was 
juror;  that  this  method  was  fair  and  thereupon  the  proposition 
of  the  foreman  was  agreed  to  by  the  jury  and  each  juror  wrote 
the  amount  he  thought  the  plaintiffs  were  entitled  to  recover 
upon  a  slip  of  paper  and  put  it  in  a  hat ;  that  thereupon  the  slips 
were  taken  out  of  the  hat  and  the  amounts  called  out  and  as  the 
amounts  were  called  it  was  observed  that  three  of  the  jurors 
had  written  down  the  amount  of  $5,000,  as  being  the  amount 
in  their  opinion  the  plaintiff  zcas  entitled  to  recover ;  that  the 
jury  thereupon  objected  stating  that  this  could  not  be  done, 
whereupon  the  jurors  who  had  voted  for  $5,000  each,  or  some 
of  them,  stated  that  they  and  each  of  them  had  as  much  right 
to  vote  as  much  above  $4,000,  the  amount  sued  for,  as  the 
other  jurors  had  to  vote  for  amounts  less  than  the  amount 
sued  for;  that  the  various  amounts  were  finally  added  up  and 
divided  by  twelve  and  there  was  dissatisfaction :  that  it  was 
at  least  three  quarters  of  an  hour  after  the  calculation  had 
been  made  before  all  the  jury  would  consent  to  stand  by  the 
iDargain  they  had  made  and  return  the  amount  figured  out,  or 
quotient  verdict,  as  their  verdict  in  this  case;  that  said  juror 
stated  to  this  affiant  that  he  would  never  have  consented  to  go 


316  SUITS    AT    LAW. 

into  the  agreement  had  he  known  or  thought  that  any  of  the 
jury  would  have  put  down  an  amount  over  $4,000 ;  that  after 
the  calculation  had  been  made  and  the  amount  found  to  be  so 
high,  there  was  quite  a  discussion  about  the  matter  and  certain 
jurors  who  voted  in  favor  of  large  amounts  insisted  that  the 
jury  should  be  bound  by  the  agreement  and  not  try  to  kick 
out  of  the  proposition. 

That  another  juror  had  stated  since  the  trial,  to  two  gentle- 
men of  character,  that  the  jury  agreed  upon  the  manner  of 
arriving  at  their  verdict  in  the  manner  hereinabove  stated ;  that 
said  juror  stated  that  he  voted  for  $5,000,  and  did  all  he  could 
for  the  plaintififs,  and  that  when  the  amount  was  figured  out, 
some  of  the  jurors  objected  and  tried  to  get  out  of  it,  but  that 
he  insisted  upon  the  verdict. 

That  the  jurors  refuse  to  file  an  affidavit  in  this  case  but 
state  that  they  are  willing  to  testify  to  the  facts  hereinbefore 
alleged,  provided  the  court  thinks  it  proper  for  them  to  do  so. 

D.  J.  McDonald. 

Sworn  to  and  subscribed  before  me  this  the  15th  day  of 
January,  1912.  A.  R., 

Deputy  Clerk. 

(V)  Granting  a  new  trial  for  the  misconduct  of  the  jury  is  in  the 
discretion  of  the  court.  Buckeye  Powder  Co.  v.  DuPont  Co.,  223 
Fed.  881. 

The  testimony  of  a  juror  may  not  be  received  to  prove  misconduct 
of  himself  or  his  colleagues,  and  the  conformity  act  does  not  apply 
in  such  case.     McDonald  v.  Pless,  238  U.  S.  264,  59  L.  Ed.  1300. 


No.  250. 

Extract  from  Charge,  on  Weighing  of  Testimony. 

When  you  come  to  consider  the  evidence  of  the  witnesses, 
you  are  the  exclusive  judges  of  the  weight  of  the  evidence  and 
the  credibility  of  the  witnesses  and  the  facts  proven.  You 
should  take  into  consideration,  of  course,  the  interest  any  wit- 
ness has  in  the  result  of  the  litigation ;  you  should  take  into 


PROCESS,    MOTIONS,    JUDGMENTS.    ETC.  317 

consideration  his  manner  and  demeanor  while  testifying  on 
the  stand ;  his  apparent  fairness  or  lack  of  fairness ;  his  knowl- 
edge of  the  situation,  as  shown  by  the  testimony,  or  his  lack 
of  knowledge,  and  all  the  other  facts  and  circumstances  which 
tend  to  give  weight  to  or  detract  from  his  testimony.  If,  in 
any  matter,  you  believe  any  witness  has  wilfully  testified 
falsely  concerning  any  material  matter,  then  it  is  your  privilege 
to  disregard  the  entire  testimony  of  any  such  witness,  or  you 
can  give  it  credence  where  you  think  it  is  entitled  to  belief 
or  is  corroborated,  and  lay  aside  the  remainder. 


No.  251. 

Writ  of  Replevin  (1). 

The  United  States'  of  America, 
District  of ,  ss. 

The  District  Court  of  the  United  States. 

A.  B.,   Plaintiff,  \ 

V.  (.  At  Law.  No. 

C.  D.,  Defendant.      ) 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of ,  Greeting : 

You  are  commanded  to  take  [here  describe  the  property 
to  be  taken]  fr^m  the  possession  of  the  defendant,  C.  D.,  and 
deliver  the  same  to  the  plaintiff,  A.  B.,  upon  A.  B.  giving  the 
undertaking  required  by  law. 

You  will  make  due  return  of  this  order  on  or  before  the 
Tuesday  of ,  1894. 

[Add  teste  according  to  the  court  issuing  the  zi^rit.] 

(1)  A  proceeding  in  the  nature  of  a  replevin  proceeding  is  author- 
ized by  the  copyright  act,  35  Stat.  L.,  1075,  and  the  earlier  statute  on 
the  same  subject,  R.  S.  U.  S.,  Sec.  4965.  Section  25  of  the  present 
copyright  act  deals  with  infringements  and  is  amended  in  37  Stat.  L. 
489;  this  together  with  the  rules  prescribed  by  the  supreme  court  for 
its  enforcement,  provides  generally  that  when  in  an  infringement  pro- 


318 


SUITS    AT    LAW. 


ceding  an  affidavit  and  bond  have  been  filed  with  the  clerk  and  ap- 
proved, the  clerk  shall  issue  a  writ  to  the  marshal  directing  him  to 
seize  and  hold  the  copies  mentioned  in  the  affidavit,  and  the  marshal 
shall  seize  them  and  serve  a  copy  of  the  affidavit,  bond  and  writ 
upon  the  defendant. 


No.  252. 

Return  of  Marshal  on  above  Writ  of  Replevin, 

— ,  1894.     I  have  this  day  executed  the  foregoing-  order 

of  delivery,  by  taking  the  property  therein  mentioned:  ascer- 
taining by  the  oaths  of  E.  F.  and  G.  H.,  two  responsible  iDer- 

sons,  the  value  thereof,  which  i?  dollars ;  delivering  the 

same  to  plaintiff,  A.  B.  having  executed  to  the  defendant  a 
written  undertaking  in  the  sum  of  $ ,  with  S.  L.  and  A. 

L.  as  sureties;  and  by  serving  a 

copy  of  this  order  on  C.  D.,  said 

defendant. 

[See  schedule  and  undertaking 

hereto  attached.] 

H.  C, 
United  States  Marshal  for  the 
district  of . 


Marshal's  Fees. 

Copy     .      .     . 
Service 
Mileage 
Writing  bond 
Inventory 
Writing  ap.  report 
Sum.  and  swear,  ap 
Removing   property 
Caring  for  property 
Appraisers'   fees 


No.  253. 

Replevin  Bond. 

Know  all  men  by  these  presents,  that  we,  the  A.  B.  Com- 
pany, a  corporation  organized  under  the  laws  of  the  state  of 

,  and  doing  business  in  the  county  of ,  as  principal 

and  S.  R.  and  W.  B.  as  sureties,  both  of  the  city  of ,  are 

held  and  firmly  bound  unto  R.  P.,  United  States  marshal,  for 

the district  of ,  in  the  sum  of dollars,  lawful 

money  to  be  paid  to  the  said  marshal,  or  his  assigns,  for  which 
payment  well  and  truly  to  be  made  we  bind  ourselves,  our  and 
each  of  our  heirs,  executors  and  administrators  jointly  and 


PROCESS.    MOTIONS.    JUDGMENTS,    ETC.  319 

severally,  firmly  by  these  presents.  Sealed  with  our  seals, 
Dated  the day  of ,  A.  D. . 

The  condition  of  this  obligation  is  such  that  if  the  above 
bounden,  the  A.  R.  Company,  shall  prosecute  to  efifect  a  cer- 
tain suit  in  replevin  which  it  has  commenced  in  the  District 

Court  of  the  United  States  for  the district  of , 

division,  against  C.  D.  and  the  E.  F.  Company,  defendants, 
for  taking  and  unjustly  detaining  the  following  described 
goods  and  chattels,  to  wit:  [Here  specify  property.] 

And  if  the  said  defendants  shall  recover  judgment  against 
it  in  the  said  action,  then  if  the  said  A.  B.  Company  shall  re- 
turn the  same  property,  if  return  thereof  be  adjudged,  and 
shall  pay  to  the  defendants  all  such  sums  of  money  as  may 
be  recovered  by' the  said  defendants  against  it  in  the  said  ac- 
tion, then  the  above  obligation  to  be  void,  otherwise  to  remain 
in  full  force  and  virtue.  A.  B.  Company, 

[Seal.]  By  K.  S.,  Prest.     [Seal.] 

S.  R.  [Seal] 

W.  B.  [Seal.] 

State  of , 

County  of ,  ss. 

S.  R.  and  W.  B.,  the  sureties  in  the  foregoing  bond,  being 
duly  sworn,  each  for  himself,  says  that  he  is  worth  the  penal 
sum  in  said  bond  named,  over  and  above  all  debts,  liabilities 
and  exemption.  S.  R., 

W.  B. 

Subscribed  and  sworn  to  before  me  this day  of , 

A.  D. .  F.  D..  Notary  Public, 

[Seal.]  In  and  for County. 


No.  254. 

Oath  of  Appraisers  of  Goods  Taken  on  Writ  of  Replevin. 

[Caption.] 

You  do  solemnly  swear  that  you  will,  according  to  your 
best  judgment  make  a  true  appraisement  of  the  goods  and 


320  SUITS    AT    LAW. 

chattels  taken  by  me  and  now  in  my  custody,  by  virtue  of  a 
writ  of  replevin  now  in  my  hands,  issued  out  of  the  District 

Court  of  the  United  States  for  the district  of ,  at  the 

suit  of  the  A.  B.  Company  as  plaintiff,  against  C.  D. ;  so  help 
you  God.  A.  F., 

C.  H. 

Subscribed  and  sworn  to  before  me  this day  of , 

A.  D. .  •  A.  A.  J.. 

Deputy  United  States  Marshal. 

No.  255. 

Report  of  Appraisers. 

[Caption.] 

We,  the  undersigned,  disinterested  persons,  residing  in  the 

county  of and  state  of ,  having  first  been  duly  sworn 

by  the  deputy  United  States  marshal  for  the district  of 

,  do  make  a  true  appraisement  of  all  the  goods  and  chat- 
tels   above    described    and    so    replevied    as    follows,    to-wit: 

[Here    specify    property    appraised],    at    the    sum    of    

dollars   ($ ).  A.  F., 

Dated, ,  A.  D. .  C.  H. 

Appraisers. 


No.  256. 

Fieri  Facias. 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Marshal 
of  the District  of ,  Greeting: 

You  are  hereby  commanded,  that  of  the  goods  and  chattels. 
and  for  want  thereof,  then  of  the  lands  and  tenements  of 

C.  D.  in  your  district,  you  cause  to  be  made  the  sum  of 

dollars  damages,  and dollars  costs  of  suit,  which,  by  the 

judgment  of  the  district  court  of  the  United  States  for  the 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  321 

• district  of ,  at  the  term  thereof,  in  the  year 

1894,  A.  B.  recovered  against  the  said  C.  D.,  with  interest 

thereon  from  the day  of ,  1894,  until  paid,  together 

with  the  further  sum  of dollars,  costs  of  increase  on  said 

judgment ;  and  also  the  costs  that  may  accrue  on  this  writ. 

And  have  you  the  said  moneys  in  the  said  district  court, 

before  the  judges  thereof,  at  the  city  of ,  in  said  district, 

within  sixty  days  from  the  date  of  this  writ,  to  be  paid  to  the 
persons  entitled  to  receive  the  same.  And  have  you  then  and 
there  this  writ. 

[Add  teste  according  to  court  issuing  the  writ.] 


No.  257. 

Vendi  Exponas. 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of ,  Greeting : 

You  are  hereby  commanded  to  expose  to  sale  the  following 

described  property,  viz.:     [Set  forth  the  description'], 

which,  according  to  command,  you  have  levied  on.  and  which 
remains  in  your  hands  unsold,  as  you  have  certified  to  the 

judges  of  the  district  court  of  the  United  States  for  the 

district  of aforesaid,  to  satisfy  a  judgment  of  said  court, 

rendered  at  the term  thereof,  in  the  year ,  in  favor 

of  A.  B.  against  C.  D.  for  the  sum  of dollars,  and 

dollars  costs  for  suit,  with  interest  thereon  from  the day 

of  ,  1894,  until  paid,  together  with  the  further  sum  of 

dollars,  costs  of  increase  on  said  judgment ;  and  also  the 

costs  that  may  accrue  on  this  writ.  And  if.  in  your  opinion, 
the  property  remaining  in  your  hands,  not  sold,  will  be  in.suf- 
ficient  to  satisfy  the  judgment  aforesaid,  then  you  are  hereby 
commanded  that  you  levy  the  same  upon  other  goods  and  chat- 
tels, lands  and  tenements,  or  either,  as  the  law  shall  permit. 


322  SUITS    AT    LAW. 

being  the  property  of  the  judgment  debtor;  which,  together 
with  the  property  on  hand  not  sold  as  aforesaid,  will  be  suffi- 
cient to  satisfy  the  judgment  aforesaid.  And  have  you  the 
said  moneys  in  the  said  district  court,  before  the  judges  thereof, 

at  the  city  of ,  in  said  district,  on  the  third  Tuesday  in  the 

month  of next,  to  be  paid  to  the  persons  entitled  to  receive 

the  same.     And  have  you  then  and  there  this  writ. 
[Add  teste  according  to  the  court  issuing  the  zvrit.] 


No.  258. 

Rule  to  Show  Cause. 

In  the  District  Court  of  the  United  States, 
District  of . 

A.  B.,  Plaintiff,         ) 

vs.  V  No. 

C.  D.,  Defendant.      ) 

The  President  of  the  United  States  of  America,  to  C.  D., : 

You  are  hereby  cited  and  admonished  to  be  and  appear 
before  our  district  court  of  the  United  States,  within  and  for 

the district  of ,  on ,  the day  of ,  1894, 

at  10  o'clock  a.  m.,  to  show  cause,  if  any  you  know  or  have, 
why  [here  set  forth  the  grounds  for  the  rule,  as,  you  should 
not  be  attached  for  contempt  of  court  in  that,  etc.].  And  it  is 
ordered  that  the  marshal  of  this  district  make  legal  service  and 
due  return  of  this  rule  on  or  before  the  appearance  day  above 
noted. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  259. 

Undertaking  in  Attachment. 

The  United  States  of  America, 
District  of ,  ss. 


Whereas,  A.  B.  has  commenced  a  civil  action  against  C.  D. 
in  the  district  court  of  the  United  States  for  the district 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  323 

of to  recover  the  sum  of dollars ;  and,  whereas,  the 

said  A.  B.  has  applied  to  the  clerk  of  said  court,  by  filing  the 
necessary  affidavit,  for  an  order  of  attachment,  to  be  issued  in 
said  action,  against  the  said  C.  D.  Now,  therefore,  we,  A.  B., 
E.  F.,  and  G.  H.,  hereby  undertake  to  the  said  C.  D.  in  the 

sum  of dollars,  that  the  said  A.  B.  shall  pay  the  said  C..D. 

all  damages  which  the  said  C.  D.  may  sustain  by  reason  of  said 
attachment  if  the  order  should  have  been  wrongfully  obtained. 

Dated  at this day  of ,  1894. 

A.  B.      [Seal] 
E.  F.     [Seal.] 
G.  H.     [Seal.] 
[Add  acknowledgment  and  justification  of  sureties.] 


No.  260. 

Writ  of  Attachment. 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  United  States  of  America,  to  the  Marshal 
of  the District  of ,  Greeting: 

\\'hereas,  A.  B.  has  this  day,  on  the  necessary  affidavit  being 
filed,  obtained  an  order  of  attachment  against  C.  D.  in  a  certain 
action  of  [name  of  action]  now  pending  in  the  district  court 

of  the  United  States,  for  the  district  of ,  wherein 

the  said  A.  B.  is  plaintiff,  and  the  said  C.  D.  is  defendant,  to 
recover  of  the  said  defendant  the  sum  of dollars. 

Now,  therefore,  you,  the  said  marshal,  are  hereby  com- 
manded to  attach  and  safely  keep  the  lands,  tenements,  goods, 
chattels,  stocks,  or  interest  in  stocks,  rights,  credits,  moneys, 
and  effects  of  the  said  C.  D.,  defendant,  in  your  district,  not 
exempt  by  law  from  being  applied  to  the  plaintiff's  claim,  or 
so  much  thereof  as  will  satisfy  to  the  said  plaintiff  his  claim  for 

dollars,  and  one  hundred  dollars,  the  probable  cost  of 

this  action. 


324  SUITS    AT    LAW. 

And  of  this  order  of  attachment,  and  of  your  proceedings 

thereon,  you  will  make  due  return  on  the  day  of  , 

1894. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  261. 

Writ  of  Attachment  for  Contempt. 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Marshal 
of  the District  of ,  Greeting-: 

We  command  you  that  you  attach  C.  D.  so  as  to  have  his 
body  before  our  district  court  of  the  United  States,  within  and 

for  the  district  aforesaid,  at  the  court  rooms  in  the  city  of , 

on  the day  of ,  1894,  then  and  there  to  answer  of  a 

certain  contempt  by  him  lately  committed  against  said  court, 
in  that  [set  forth  briefly  the  grounds  for  attachment],  and 
further  to  do  and  receive  what  our  said  court  shall  in  that 
behalf  consider. 

And  have  you  then  and  there  this  writ. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  262. 

Scire  Facias  to  Revive  a  Judgment  (1). 

The  United  States  of  America, 
District  of ,  ss. 

The   President  of  the  United   States  to  the  Marshal  of  the 
District  of ,  Greeting: 

Whereas,  A.  B.,  citizen  of  the  state  of  ,  lately  in  our 

district  court  of  the  United  States  for  the  district  of 

,  before  our  judges  of  our  said  court  at ,  to-wit :  on 

the day  of ,  18 — ,  by  the  consideration  of  our  said 

court,  recovered  against  C.  D,  a  judgment  for  the  Fum  of 


PROCESS,    MOTIONS,    JUDGMENTS,   ETC.  325 

dollars  for  his  debt,  as  well  as  fifty  dollars  for  his  costs  and 
charges  by  him  about  his  suit  in  that  behalf  expended,  whereof 
the  said  defendant  is  convict,  as  appears  to  us  of  record.  And 
whereas,  by  the  insinuation  of  the  said  A.  B.,  we  have  in  our 
said  court  understood,  that  although  the  judgment  in  form 
aforesaid  be  given,  yet  execution  thereof  still  remains  to  be 
done,  whereof  he  besought  us  to  grant  unto  him  in  his  behalf  a 
proper  remedy,  and  we,  being  willing  that  what  is  right  and 
just  should  be  done  herein,  do  command  you,  the  said  marshal, 
that,  by  good  and  lawful  men  of  your  bailiwick,  you  give 
notice  to  the  said  C.  D.  that  he  be  and  appear  before  our  judges 

at  ,  at  our  said  court,  there  to  be  held  for  the  district 

aforesaid,  the Monday  of next,  to  show  if  anything 

he  can  say  why  the  said  judgment  should  not  be  revived,  and 
the  lien  continued,  and  why  the  said  plaintiff  ought  not  to 
have  his  execution  against  C.  D.  for  debt,  interest  and  cost 
aforesaid,  according  to  the  force,  form  and  effect  of  the  re- 
covery aforesaid,  if  he  shall  think  fit.  And  further  to  do  and 
receive  whatsoever  our  said  court  shall  then  and  thereof  and 
concerning  him  in  this  behalf  consider.  And  have  you  then  and 
there  the  names  of  those  by  whom  you  shall  make  known  to 

and  this  writ. 

[Add  teste.] 

(1)  The  rule  of  practice  is  that  of  the  state  in  which  proceedings 
are  had.  See  McKnight  v.  Craig's  Adm.,  6  Cranch  183  (187);  Walden 
V.  Craig,  v.  14  Pet.  147  (151);  Kenosha,  etc.,  R.  R.  v.  Sperry,  3  Biss.  309, 

Judicial  Code,  Sec.  262,  makes  this  writ  issuable  by  the  supreme 
and  district  courts. 

For  a  discussion  of  the  nature,  effect  and  service  of  this  writ,  see 
Collin  County  National  Bank  v.  Hughes,  152  Fed.  414,  81  C.  C.  A.  556. 

R.  S.  U.  S.,  Sec.  955,  provides  for  the  bringing  in  of  an  executor 
or  administrator  of  a  deceased  defendant  or  plaintiff  by  scire  facias. 
In  re  Connaway,  Recr.,  178  U.  S.  421,  44  L.  Ed.  1134. 

See  Foster's  Federal  Practice,  5th  ed.,  pages  1527  to   1530. 

In  a  writ  of  scire  facias  issued  upon  a  defaulted  recognizance  in 
a  criminal  proceeding,  a  recital  of  all  proceedings  thereon  was  made, 
and  the  order  for  service  of  the  writ  ran  as  follows: 

"You  are  hereby  commanded  to  make  known  to  said and  

that  they  and  each  of  them  be  and  appear  before  the  judge  of  the 


326  SUITS   AT    LAW. 

district  court  of  the  United  States  in  and  for  said  eastern  division 
of  the  southern  district  of  Georgia  at  a  court  to  be  holden  in  the  city 
of  Savannah  on  the  second  Tuesday  of  May,  1902,  that  being  the  May 
term,  1902,  of  said  court,  then  and  there  if  they  know  or  have  any- 
thing to  say  for  themselves  why  the  said  sums  of  money  should  not 
be  levied  for  the  said  United  States  of  America,  to-wit,  the  sum  of 

of  the  goods  and  chattels,  lands  and  tenements  of  the  said  , 

and  the  sum  of  of  the  goods  and  chattels,  lands  and  tenements 

of  ,  to  be  levied  according  to  the  said  recognizance  if  it  to  them 

shall  seem  expedient,  and  have  you  then  and  there  this  writ.  Wit- 
ness, etc. 

Clerk. 

Sealed  with  the  seal  of  the  court." 

The  nature,  uses  and  effect  of  this  writ  are  extensively  discussed 
in  Kirk  v.  U-  S.,  124  Fed.  324,  and  S.  C.  131  Fed.  331,  and  as  to  service 
it  was  held  that  it  could  not  be  made  outside  of  the  district  of  the 
court  issuing  it.  On  a  recognizance  the  writ  is  an  original  one,  but 
in  a  suit  to  revive  a  judgment  the  writ  is  in  continuation  of  the 
same  suit  in  which  the  judgment  was  decreed,  and  the  court  may 
entertain  jurisdiction  of  the  revivor  proceeding  although  it  is  between 
parties  resident  in  the  state,  as  where  an  assignee  of  the  judgment 
brought  the  writ  to  revive  it.  Wonderley  v.  Lafayette  County,  77 
Fed.  664,  92  Fed,  313. 


No.  203. 

Notice  of  Taxation  of  Costs. 

[Caption.] 
Y.  &  Y., 

Attorneys  for  Defendant  [or.  Plaintiff]. 

Please  take  notice  that  the  bill  of  costs  in  the  above  entitled 
cause  will  be  taxed  before  the  clerk  of  said  court  at  his  office 

at ,  in  the  city  of ,  on  the day  of ,  at  ten 

o'clock  in  the  forenoon  of  that  day  as  follows,  to-wit : 

Marshal's  fees,   $ . 

Clerk's  fees,    $ . 

Commissioner's  fees,   $ , 

Attorney's  fees, $ . 

X.  &X., 
Attorneys  for  Plaintiff  [or,  Defendant]. 

Dated . 

Service  accepted,  etc. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC. 


327 


A.  B.,  Plaintiff, 

vs. 
C.  D.,  Defendant. 


No.  264. 

Cost  Bill.  . 

District  court  of  the  United  States  for 

the district  of . 

No. . 


CLERK'S  FEES  (i). 

Entering  appearance  of parties,  . 

Drawing,  filing  and  ack.  cost  bond.  .    . 

Issuing process  (except  for  witness), 

Indorsing  cause  of  action  on writs, 

Issuing subpoenas  for  witnes.ses,  . 

Entering  marshal's  return  on writs; 


folios. 


Filing papers 

Indorsing   certificate   of  opening 

depositions, 

Copying  folios 

Certificate  and  seal  to copies, 

Taking affidavits, 


Certificate  and  seal  thereto,  .    . 

Indorsing  papers ;  folios,    . 

Entering folios  on  journal. 

Drawing bonds  ;  folios. 

Taking ack's  under  seal,     . 

Swearing sureties  to  bond. 


Certificate  and  seal  thereto,       •    •     .    . 

Swearing  witnesses to  testify,  .    . 

Swearing  witnesses   to   att.    and 

travel 

Entering folios  claims  of  witnesses. 

Issuing certificates  of  attendance,  . 

Entering folios  complete  record,  . 

Making   dockets,   indexes,   etc.,   $i.oo, 

$2.00,   $.^.00, 


Commission  on  amount  received,  $  . 
Making  copy  of  cost  bill ;  folios, 


GENERAL  STATEMENT. 

Clerk 

Marshal 

Docket  fee 

Attorney's  fees  on  depositions 

Plaintiff's  notary's  fees  on  depositions, 
Defendant's    notary's    fees   on   deposi- 
tions  

Defendant's  witnesses'  fees 

Plaintiff's  witnesses'  fees, 

Total 


@ 


■15 


1. 00 
•15 
■25 


•35 


.10 

•35 
.1 


•45 


PLAINTIFF. 


(I)  See  R.  S.  Sec.  828. 


328  SUITS   AT   LAW. 

No.  265. 

Stipulation  Extending  Time  to  Settle  Bill  of  Exceptions  (i). 

\_Caption.'\ 

Whereas,  the  settlement  of  the  bill  of  exceptions  in  the 
above  entitled  cause  has  been  heretofore  noticed  before  the 

Hon.  H.  H.,  for ,  the day  of ,  A.  D.  ,  it 

is  hereby  stipulated  by  and  between  the  attorneys  for  both 

parties  hereto  that  the  same  be  adjourned  till ,  the 

day  of  ,   190 — . 

Dated .  R.  Y., 

Attorney  for  Defendant. 
R.  X., 
Attorney  for  Plaintiff. 

(i)  Such  stipulation  should  be  filed  on  or  before  the  date  noted  for 
iettling  the  bill   of  exceptions. 


No.  266. 

Order  Enlarging  Time  for  Filing  Bill  of  Exceptions  (i), 

ICaption.'] 

This  day  came  the  defendants  and  made  application  for  an 
order  extending  the  time  for  the  signing,  allowance  and  filing 
of  the  bill  of  exceptions  herein,  and  cause  being  shown  there- 
for, such  application  is  granted,  and  the  time  for  the  signing, 
allowance  and  filing  of  the  bill  of  exceptions  of  the  above 
named  defendants  is  extended  for  ten  days  from  and  after 
the  last  day  of  the  present  term  of  court,  to  wit,  from  and 
after . 

(i)  This  order  should  be  made  during  the  trial  term.  See  Bank  vs. 
Eldred,  143  U.  S.,  298;  Merchants'  Ins.  Co.  vs.  Buckner,  39  C.  C.  A.,  19. 
S.  C.  98  Fed.  222. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  329 

No.  267. 

Order  Permitting  Defendants  to  File  Bill  of  Exceptions  after 

Time  Allowed. 

[Caption.] 

On  motion  of  Denegre  and  Blair  and  Victor  Leovy,  counsel 
for  defendant,  and  on  suggesting  to  the  court  that  at  the  hear- 
ing of  this  cause  counsel  for  defendant  presented  a  motion  for 
thirty  days'  time  in  which  to  prepare,  settle  and  file  bills  of 
exception,  and  it  was  thereupon  informally  agreed  upon  be- 
tween all  counsel  and  the  court  that  all  counsel  should  have 
all  the  time  that  might  be  reasonably  proper  for  that  purpose ; 
and  that  no  harm  should  be  suffered  in  that  regard  by  delays 
to  the  cause;  and  considering  that  thereafter  the  hearing  of 
the  motion  for  new  trial  was  continued  indefinitely  on  account 
of  absence  of  opp)Osing  counsel ;  and  for  good  and  valid  reasons, 
including  necessary  absences  of  the  court,  has  only  lately  been 
refixed;  and  considering  that  said  motion  has  not  yet  been 
heard  "nor  judgment  entered  and  that  the  whole  matter  is  still 
within  the  control  of  the  court  and  the  presentation  of  bills  of 
exception  is  still  timely  under  the  law ;  and  considering  the 
presentation  of  such  bills  at  this  time  by  said  counsel  and  the 
consent  of  opposing  counsel  in  open  court,  it  is  ordered  that 
the  counsel  for  defendant  be  now  permitted  to  present  his 
bills  of  exception  taken  at  the  trial  for  settlement  as  of  date  of 
trial.  A.  B., 

D.  J. 


No.  268. 

Order  Permitting  Bill  of  Exceptions  to  be  Prepared,  Agreed 
To  and  Settled,  after  Term. 
[Caption.] 

It  is,  by  consent  of  the  parties  hereto,  ordered  that  The 
Southern  Railway  Company  have  18  days  from  the  adjourn- 


330  SUITS    AT    LAW. 

ment  of  this  court  in  which  to  prepare  and  file  with  the  clerk 
of  this  court  formal  bills  of  exceptions  in  this  case,  and  that 
the  plaintiff  shall  have  5  days  thereafter  in  which  to  file  with 
said  clerk  his  objections  and  amendments  thereto.  The  clerk 
shall  then  forthwith  forward  to  his  honor,  J.  C.  Pritchard, 
circuit  judge,  said  bill  of  exceptions  and  amendments  thereto, 
if  there  be  any,  for  final  settlement  of  the  same  at  such  time 
and  place  as  said  judge  shall  designate,  provided  that  the  par- 
ties hereto  or  their  attorneys  shall  have  at  least  3  days'  notice 
of  the  time  and  place  fixed  by  said  judge  for  the  final  settle- 
ment by  him  of  said  bill  of  exceptions.  Such  bill  of  exceptions, 
when  settled,  shall  be  taken  and  deemed  as  filed  in  apt  time  and 
during  this  term,  shall  be  dated  as  of  this  term,  and  in  all 
respects  shall  be  considered  the  bills  of  exceptions  in  this  case. 

J.  C.  Pritchard, 
Circuit  Judge. 
[Date.] 


No.  269. 

Bill  of  Exceptions — Introduction. 

[Caption.] 

Before ,  District  Judge,  without  a  jury,  at  common  law. 

This  action  was  originally  commenced  in  the  supreme  court 
of  the  State  of  New  York,  Oswego  County,  by  the  issuance  of 
a  summons  dated  March  17,  1911.  which  together  with  a  copy 
of  the  complaint  was  served  on  the  defendant,  American  Bond- 
ing Company,  of  Baltimore,  on  or  about  March  27,  1911,  which 
thereafter  and  on  or  about  April  11,  1911,  duly  appeared  by 
Willard  P.  Jessup,  its  attorney.  On  or  about  April  11,  1911, 
the  defendant,  Baker  Motor  Vehicle  Company,  appeared  volun- 
tarily by  Willard  P.  Jessup,  its  attorney.     Thereafter  and  on 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  331 

the  15th  day  of  April,  1911,  this  action  was  duly  removed  to 
the  United  States  district  court  for  the  northern  district  of 
New  York  on  petition  of  both  defendants.  On  or  about  May 
8,  1911,  a  demurrer  was  served  by  both  defendants.  The  issue 
of  'aw  raised  by  said  demurrer  thereafter  duly  came  on  to  be 
heard  and  was  overruled  by  an  order  entered  September  12, 
1911. 

The  answers  of  the  defendant,  Baker  Motor  Vehicle  Com- 
pany, and  the  defendant,  American  Bonding  Company  of  Balti- 
more, were  served  on  October  21,  1911. 

The  case  duly  came  on  to  be  tried.     Plaintiff  appeared  by 

,  his  attorney,  and ,  his  counsel,  and  the  defendants 

ai)peared  by  ,  their  attorney,  and  ,  their  counsel. 

In  the  course  of  the  trial  counsel  for  the  defendant  did  take 
and  allege  sundry  exceptions  (1)  to  the  ruHngs  of  the  court 
which  said  exceptions  are  hereinafter  set  forth  herein. 

The  trial  of  this  case  was  begun  on  September  12,  1912. 

A  jury  having  been  duly  waived  by  all  parties  the  case  was 
opened  to  the  court  on  behalf  of  the  plaintiff,  and  thereupon 
the  parties  to  maintain  the  issue  on  their  part,  introduced  oral 
and  documentary  testimony  and  evidence  as  follows : 

Here  folloiv  the  introduction  of  exhibits  and  the  objections 
thereto  and  the  rulings  of  the  court  thereon,  and  exceptions  to 
said  rulings,  and  the  same  zmth  respect  to  oral  testimony,  and 
exceptions  to  ridings  of  the  court  on  instructions  requested  and 
objections  to  charges  given,  and  so  forth. 

(1)  The  office  of  the  exception  is  to  challenge  the  correctness  of 
the  rulings  or  decisions  of  the  trial  court  promptly  when  made  to 
the  end  that  the  rulings  may  be  corrected  by  the  court  itself,  if 
deemed  erroneous,  and  to  lay  the  foundation  for  their  review,  if 
necessary,  by  the  proper  appellate  tribunal.  In  the  federal  courts 
the  taking  of  an  exception  immediately  on  the  making  of  the  ruling 
is  indispensable  to  a  review  by  the  appellate  court.  Board  of  Com- 
missioners V.  Home.  Savings  Bank,  200  Fed.  28,  118  C.  C.  A.  256, 


332  SUITS    AT    LAW. 

No.  270. 

Bill  of  Exceptions  (1). 

The  District  Court  of  the  United  States, 
District  of ,  Division. 


Bill  of  exceptions. 


Be  it  remembered,  that  on  the  trial  of  this  cause  in  this 

court,  at  the term,  A.  D.  ,  of  said  court,  the  Hon. 

C.  D.,  judge,  presiding,  when  the  following  proceedings  were 
had,  to-wit :  A  jury  was  impaneled  and  sworn  according  to 
law,  and  thereupon  the  plaintiff,  to  sustain  the  issue  upon  his 
part,  offered  the  testimony  of  the  following  witnesses  as  his 
evidence  in  cliief:  [Here  set  forth  the  plaintiff's  testimony 
at  length.] 

At  the  close  of  the  foregoing  evidence  in  chief  offered  by 
the  plaintiff,  the  counsel  for  the  defendant  moved  the  court  to 
direct  a  verdict  for  the  defendant,  submitting  the  same  and  the 
reasons  therefor  in  writing  in  the  words  and  figures  following: 
[Here  set  ont  the  motion  to  instruct  for  the  defendant.] 

The  court  overruled  said  motion,  stating  that  defendant 
could  rely  upon  the  same  at  the  close  of  its  evidence,  to  which 
ruling  of  the  court  counsel  for  the  defendant  then  and  there 
excepted. 

The  defendant,  to  sustain  the  issue  upon  its  part,  then, 
through  its  counsel,  offered  the  testimony  of  the  following 
witnesses  as  his  evidence  in  chief:  [Here  set  out  the  defend- 
ant's testimony  at  length.] 

This  was  all  the  evidence  in  the  case,  and  at  its  conclusion 
the  defendant  again  renewed  its  said  motion  in  writing,  as 
above  printed,  to  direct  a  verdict  in  its  favor,  and  after  the 
argument  of  counsel,  both  of  the  plaintiff  and  defendant,  to 
the  court  upon  said  motion,  and  also  to  the  jury  upon  said  case 
upon  its  merits,  the  said  motion  was  by  the  court,  in  its  charge 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  333 

to  the  jury,  overruled,  and  to  which  action  of  the  court  in 
overruling  same  the  defendant  then  and  there,  by  the  permis- 
sion of  the  court,  excepted.  After  said  argument  the  court 
charged  the  jury  as  follows: 

[Here  set  out  the  charge  of  the  court  to  the  jury,  the  excep- 
tions thereto  aud  the  special  requests  to  charge,  indicating 
zvhether  given  or  refused  and  exceptions  taken  and  al- 
lozvcd.]  (2) 

The  jury  thereupon  retired  to  consider  their  verdict,  and 
having  returned  into  court  a  verdict  for  the  plaintiff  [or  the 
defendant],  the  defendant  [or  plaintiff  A.  B.]  afterwards  on, 

to-wit :   the day  of ,  moved  the  court  to  set  aside  the 

said  verdict  and  grant  it  a  new  trial. 

[Set  out  motion  for  a  nezu  trial.] 

Which  motion  for  a  new  trial  was,  after  argument  by 
counsel  for  and  against  the  motion,  respectively,  and  after 
due  consideration  by  the  court  on  the day  of ,  over- 
ruled. 

And  now,  in  furtherance  of  justice  and  that  right  may  be 
done  the  defendant,  C.  D.  [or  plaintiff,  A.  B.]  tenders  and 
presents  the  foregoing  as  his  bill  of  exceptions  in  this  case 
to  the  action  of  the  court,  and  prays  that  the  same  may  be 
settled  and  allowed  and  signed  and  sealed  by  the  court  and 
made  a  part  of  the  record,  and  the  same  is  accordingly  done 

this  the day  of .  CD., 

Trial  Judge. 

(1)  In  preparing  a  bill  of  exceptions  counsel  should  be  careful  to 
observe  that  the  grounds  of  exception  to  the  admission  of  testimony 
are  specifically  stated.  A  general  exception  which  fails  to  point  out 
the  grounds  of  exception  does  not  furnish  a  proper  basis  for  review 
in  an  appellate  court.  The  objection  that  the  question  is  irrelevant 
and  immaterial  is  general  and  insufficient.  Merchants'  Ins.  Co.  v. 
Buckner,  110  Fed.  345:  R.  R.  Co.  v.  Hellenthal,  31  C.  C.  A.  414, 
88  Fed.  116;  Burton  v.  Driggs,  20  Wall.  125;  Toplitz  v.  Hedden, 
146  U.  S.  252. 

The  general  rule  as  to  the  allowance  of  bills  of  exceptions  is  thus 
stated  by  Mr.  Justice  Gray  (Bank  v.  Eldred,  143  U.  S.  298,  12  Sup. 
Ct.  452,  36  L.  Ed.  163) : 


334  SUITS    AT    LAW. 

"By  the  uniform  course  of  decision,  no  exceptions  to  rulings  at  a 
trial  can  be  considered  by  this  court,  unless  they  were  taken  at  the 
trial,  and  were  also  embodied  in  a  formal  bill  of  exceptions  pre- 
sented to  the  judge  at  the  same  term,  or  within  a  further  time  allowed 
by  order  entered  at  that  term,  or  by  standing  rule  of  court,  or  by 
consent  of  parties;  and,  save  under  very  extraordinary  circumstances, 
they  must  be  allowed  by  the  judge  and  filed  with  the  clerk  during  the 
same  term.  After  the  term  has  expired,  without  the  court's  control 
over  the  case  being  reserved  by  standing  rule  or  special  order,  and 
especially  after  a  writ  of  error  has  been  entered  in  this  court,  all 
authority  of  the  court  below  to  allow  a  bill  of  exceptions  then  first 
presented,  or  to  alter  or  to  amend  a  bill  of  exceptions  already  allowed 
and  filed,  is  at  an  end.  U.  S.  v.  Breitling,  20  How.  252,  15  L.  Ed.  900; 
Mueller  v.  Ehlers,  91  U.  S.  249,  23  L.  Ed.  319;  Jones  v.  Machine  Co., 
131  U.  S.  -Append.  150,  24  L.  Ed.  925;  Hunnicutt  v.  Peyton,  102  U.  S. 
333.  26  L.  Ed.  113;  Davis  v.  Patrick,  122  U.  S.  138,  7  Sup.  Ct.  1102, 
30  L.  Ed.  1090;  Chateaugay  Ore  &  Iron  Co.,  Petitioner,  128  U.  S.,  544, 
9  Sup.  Ct.  150.  32  L.  Ed.  508." 

A  bill  of  exceptions  may  be  settled  and  filed  at  the  term  a  motion 
for  new  trial  is  overruled.  Merchants'  Ins.  Co.  v.  Buckner,  98  Fed. 
222,  29  C.  C.  A.  19. 

(2)  See  Supreme  Court  Rule  4  and  C.  C.  A.  Rule  10. 


No.  271. 

Bill  of  Exceptions   (Another  Form). 

In  the  District  Court  of  the  United  States  for  the District, 

of ,  Division. 

A.  B.      J 

V3.         >   Bill  of  exceptions. 
C  D.      ) 

This  cause  came  on  for  hearing  before  the  Hon.  C.  D., 
Judge,  etc.,  and  a  jury;  present,  R.  X.  and  G.  X.,  attorneys 
for  the  plaintiff,  and  R.  Y.  and  G.  Y.,  attorneys  for  defendant, 
•when  the  following  proceedings  were  had,  to-wit: 

[Here  insert  in  full  the  stenographic  report  of  the  evidence, 
the  charge  to  the  jury,  requests  for  special  instructions,  rulings 
of  the  court  thereon,  and  exceptions.'] 

After  hearing  all  the  evidence,  the  argument  of  counsel  and 
charge  of  the  court,  the  jury  retired  to  consider  their  verdict; 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  335 

and  returned  their  verdict  in  favor  of  plaintiff,  assessing  his 

damages  at  dollars,  upon  which  judgment  was  by  the 

court  entered  up  against  defendant,  to  all  of  which  defendant 
excepted. 

Upon  motion  of  defendant,  the  court  allows  defendant  fif- 
teen days  within  which  to  present  and  argue  motion  for  new 
trial.     And  thereupon  within  the  time  allowed,  and  on  the 

day  of ,  19 — ,  defendant  moved  for  new  trial  on 

the  following  grounds : 

[Here  insert  motion  for  new  trial.] 

After  consideration  of  said  motion,  the  court  overruled  the 
same  in  the  following  language,  to  which  the  defendant  ex- 
cepted : 

[Insert  opinion  oz'erruling  motion  for  nezv  trial.'] 

Thereupon  defendant  tenders  this  its  bill  of  exceptions  to 
the  action  of  the  court  in'  the  various  particulars  therein  set 
out,  which  is  signed  in  open  court,  sealed  and  made  a  part  of 
the  record  in  this  case. 

This  the day  of -,  A.  D. . 

.    CD.,  Trial  Judge. 


No.  272. 

Certificate  of  Reporter  to  Testimony. 

[Caption.] 

State  of  Kansas,  Wyandotte  County,  ss: 

I,  E.  L,,  the  ofHcial  stenegrapher  who  reported  the  pro- 
ceedings and  testimony  in  the  trial  of  the  above  entitled  cause, 
hereby  certify  that  the  above  and  foregoing  is  a  full,  true  and 
correct  transcript  of  all  of  the  proceedings  and  testimony,  both 
oral  and  documentary,  offered  and  introduced  in  the  trial  of 
the  foregoing  action,  and  also  of  all  exceptions  taken  and 
noted,  together  with  the  instructions  given  in  the  charge  of 


336  SUITS    AT    LAW. 

the  court  to  the  jury,  and  all  exceptions  and  changes  therein; 
and  I  now  certify  the  foregoing  to  be  such  transcript ;  and 
In  Testimony  Whereof,  I  have  hereunto  signed  my  name  at 

Kansas  City,  Kansas,  this day  of ,  1918. 

E.  L. 


No.  273. 

Certificate  of  Judge  to  Bill  of  Exceptions. 

[Caption.] 

Thereafter  on  the  4th  day  of  October,  1912,  and  within  the 
time  allowed  by  said  United  States  District  Court,  the  defend- 
ant duly  tendered  this,  its  bill  of  exceptions  herein,  which 
having  been  seen  and  examined  by  the  court  and  counsel,  is  by 
the  court  allowed  and  approved,  and  the  said  bill  of  exceptions 
is  signed  and  sealed  by  the  Hon.  John  C.  Pollock,  the  Judge 
of  said  court,  before  whom  said  proceedings  were  had,  and 
the  same  is  ordered  by  said  court  to  be  filed  and  made  a  part  of 
the  record  herein  which  is  now  accordingly  done. 

Given  under  the  hand  and  seal  of  the  judge  of  said  court 
before  whom  said  proceedings  were  had,  this  4th  day  of  Oc- 
tober, 1913. 

(Copy) 

(Seal)  John  C.  Pollock, 

Judge  of  the  United  States  District  Court  for  the  District 
of  Kansas. 

The  above  and  foregoing  bill  of  exceptions  is  hereby  ap- 
proved. A.  B., 

Attorney  for  Plaintiff. 
C.  D., 
i  ,  Attorney  for  Defendant. 

Let  the  bill  be  filed  and  the  filing  shown  of  record  as  of  this 
4th  day  of  October,  1913.  John  C.  Pollock, 

Judge. 


PROCESS,    MOTIONS,    JUDGMENTS,    ETC.  337 

No.  274. 

(Another  form.) 
Certificate  of  Judge  to  Bill  of  Exceptions. 

[Caption.] 

And  forasmuch  as  the  above  and  foregoing  matters  and 
things  do  not  fully  appear  of  record,  the  defendant  tenders 
this  its  bill  of  exceptions  by  it  reserved  herein,  and  prays  that 
the  same  may  be  allowed,  signed  and  sealed  by  the  judge  of 
this  court  and  filed  and  made  a  part  of  the  record  in  this  case, 
which  is  accordingly  done  this  17th  day  of  May,  A.  D.  1916. 

Robert  E.  Lewis, 

District  Judge. 
Approved : 

A.  B.,  Attorney  for  Plaintiff. 
C.  D.,  Attorney  for  Defendant. 


338  SUITS   AT    LAW. 


MANDAMUS.* 

No.  275. 

Petition  for  Writ  of  Mandamus  to  Compel  a  Municipality  to 
Levy  Tax  to  Pay  a  Judgment  (1). 

The  District  Court  of  the  United  States  for  the Division 

of  the District  of . 

To  the  Honorable  A.  B.,  Judge  of  the  District  Court  of  the 
United  States  for  the  Division  and  District  aforesaid : 

The  petition  of  R.  J.,  receiver  of  the  Water  &  Electric  Light 
Compan}/. 

Petitioner  would  respectfully  state  that  he  is  a  resident  and 
citizen  of  the  state  of ,  and  was,  on  the day  of , 

*  The  courts  of  the  United  States  derive  power  to  issue  a  writ 
of  mandamus  only  from  the  constitution  and  laws  of  the  United  States 
and  not  from  common  law.     Knox  County  v.  Aspinwall,  24  How.  384. 

The  supreme  court  is  given  power  to  issue  this  writ  by  R.  S.,  Sec. 
688.  Marbury  v.  Madison,  1  Cranch  137;  In  re  Green,  141  U.  S.  326; 
Ex  parte  Bradstreet,  7  Pet.  646.  The  circuit  courts  of  appeal  by  sec- 
tion 12  of  the  act  of  March  3,  1891,  26  Stat.  L.  826.  U.  S.  v.  Severens, 
18  C.  C.  A.  314,  71  Fed.  768.  The  circuit  and  district  courts  by 
R.  S.,  Sec.  716  and  the  supreme  court  of  the  District  of  Columbia  by 
R.  S.  relating  to  D.  C,  Sec.  763,  as  amended  February  27,  1877,  19 
Stat.  L.  253;  U.  S.  v.  Schurz,  102  U.  S.  394. 

In  no  case  can  a  court  issue  a  writ  of  mandamus  in  the  exercise  of 
original  jurisdiction  but  only  as  ancillary  to  some  other  proceeding 
the  right  of  which  they  have  acquired  jurisdiction.  Mclntire  v. 
Wood,  7  Cranch  505;  Rosenbaum  v.  Bauer,  120  U.  S.  450,  or  in  the 
exercise  of  appellate  jurisdiction.  Marbury  v.  Madison,  1  Cranch  137; 
In  re  Green,  141  U.  S.  326;  U.  S.  v.  Severens,  18  C.  C.  A.  314,  71  Fed. 
768. 

The  proceedings  are  on  the  law  side  of  the  court.  Ward  v. 
Gregory,  7  Pet.  633;  Muhlenberg  County  v.  Dyer,  13  C.  C.  A.  64, 
65  Fed.  634. 

R.  S.  U.  S.,  Sec.  688,  is  now  found  in  the  Judicial  Code,  Sec. 
234,  36  Stat.  L.  1156,  giving  power  to  the  supreme  court  to  issue  writs 
of  mandamus.  R.  S.  U.  S.,  Sec.  716,  regarding  the  power  of  United 
States  courts  generally  over  the  issue  of  writs  is  now  found  in  the 
Judicial  Code,   Sec.  262,   36  Stat.   L.    1162. 


MANDAMUS.  339 

appointed  receiver  of  the  Water  &  Electric  Light  Company, 
bv  an  order  of  the  District  Court  of  the  United  States  for  the 


■'The  circuit  court  of  appeals  will  not  issue  this  writ  where  there  is 
nothing  to  which  the  right  to  issue  such  a  writ  can  be  said  to  be 
an  incMent."  U.  S.  v.  Sessions,  205  Fed.  502,  123  C.  C.  A.  570.  The 
same  may  be  said  of  the  district  courts.  U.  S.  v.  Nashville,  etc.,  R. 
Co.,  217  Fed.  254. 

The  practice  in  mandamus  proceedings  conforms  in  general  to 
the  practice  in  common  law  actions.  Cleveland  v.  U.  S.,  127  Fed. 
667,  62  C.  C.  A.  393. 

In  Ex  parte  Harding,  219  U.  S.  363,  55  L.  Ed.  252,  the  question 
was  whether  the  decision  of  the  circuit  court  not  to  remand  a  case 
to  the  state  court  could  be  the  subject  of  mandamus  proceedings 
in  the  supreme  court;  in  other  words,  whether  by  mandamus  a  court 
having  asserted  jurisdiction  could  be  compelled  to  let  go  by  this 
writ,  and  Chief  Justice  White  reviewed  the  cases  in  the  supreme 
court,  reaffirming  the  rule  that,  in  spite  of  conflicting  decisions,  man- 
damus is  not  the  proper  remedy  in  such  case.  To  so  use  it  "would  be 
to  usurp  the  function  of  error  or  appeal,  and  it  has  many  times  been 
held  that  this  writ  can  not  be  used  for  that  end. 

In  Ex  parte  Simons,  247  U.  S.  231,  62  L.  Ed.  1094,  the  district 
court  transferred  a  cause  of  action  to  the  equity  side  of  the  court 
under  an  erroneous  conception  of  the  law  of  New  York;  petition  was 
made  to  the  supreme  court  for  mandamus,  or  that  being  regarded  as 
improper  then  prohibition  or  certiorari,  whichever  would  be  ap- 
proved. Justice  Holmes,  speaking  for  the  court,  says  that  "it  does 
not  much  matter  in  what  form  an  extraordinary  remedy  is  afforded 
in  this  case.  But  as  the  order  may  be  regarded  as  having  repudiated 
jurisdiction  of  the  first  count,  mandamus  may  be  adopted  to  require 
the  district  court  to  produce  and  to  give  the  plaintiff  her  right  to  a 
trial  at  common  law." 

For  the  general  principles  governing  the  issue  of  this  writ,  see 
Foster,  Federal  Practice,  5th  ed.,  pages  1445  to  1456,  and  for  the 
general  rules  of  practice  therein,  see  ibidem,  pages  1461  to  1469. 

Mandamus  is  not  a  writ  of  right,  and  the  petitioner  must  come 
with  clean  hands,  as  in  equity.     Turner  v.   Fisher,  222  U.   S.  204. 

A  suit  was  brought  in  the  United  States  district  court  for  infringe- 
ment of  patent,  of  copyright,  and  for  unfair  competition,  decree  and 
accounting  ordered;  appeal  and  circuit  court  of  appeals  upheld  in 
part  and  disaffirmed  in  part,  and  district  court  decreed  accordingly 
and  appointed  a  master  to  proceed  with  the  accounting.  Meanwhile 
in  another  circuit  an  opposite  holding  had  been  made  as  to  the 
validity  of  the  patent  in  suit,  and  certiorari  proceedings  were  enter- 
tained bjf  the  supreme  court;  thereupon  the  circuit  court  of  appeals 
was  moved  to  stay  accounting  in  the  district  court,  but  refused,  be- 


340  SUITS    AT    LAW. 


Division  of  the District  of ,  pronounced  in  the 


cause  of  the  National  Construction  Company  against  said 
Water  &  Electric  Light  Company  and  others.  By  said  order 
petitioner,  as  receiver,  was  authorized  to  sue  for  the  debts  due 

said  Water  &  Electric  Light  Company,  and  did,  on  the 

day  of ,  by  leave  of  said  court,  file  a  bill  in  said  cause  to 

collect  from  the  city  of the  amount  due  from  it  to  said 

Water  &  Electric  Light  Company. 

After  appearance  and  defense  made  by  the  city  of ,  and 

on  a  final  hearing  of  said  cause,  petitioner,  as  receiver  as  afore- 
said, recovered  of  the  city  of the  sum  of ($ ) 

dollars,  and  the  costs  of  said  cause,  as  appears  from  a  copy  of 
said  decree  herewith  filed  as  Exhibit  "A,"  and  asked  to  be 
taken  as  a  part  hereof,  but  not  for  copy. 

Petitioner  further  states  that  the  city  of is  a  municipal 

corporation,  chartered  and  existing  under  acts  passed  by  the 

General  Assembly,  of  the  state  of ,  and  is  situated  in 

county,  state  of ,  and  within  division  and  district  afore- 
said.    Under  the  laws  of the  real  and  personal  property 

of  said  municipal  corporation  held  and  used  for  its  corporate 
purposes  is  exempt  from  levy  and  sale  by  execution. 

cause  the  case  was  beyond  its  jurisdiction  and  anyway  no  stay  had 
been  requested  in  the  district  court;  thereupon  the  district  court 
was  moved  on  the  same  ground  to  stay  the  account,  but  refused  on 
the  theory  that  conditions  were  right  for  the  accounting  after  a 
prolonged  litigation,  and  it  could  not  be  expected  to  anticipate  an 
adverse  decision  in  the  supreme  court.  Thereupon  a  petition  for  a 
writ  of  mandamus  was  asked,  directed  to  both  courts  below  to  do 
nothing  further  in  the  case  until  the  certiorari  proceeding  might  be 
determined;  it  was  refused,  the  court  saying  that  it  would  not  lie  to 
the  circuit  court  of  appeals,  since  the  case  was  not  in  that  court,  nor 
to  the  district  court,  because  the  writ  was  not  intended  to  control 
interlocutory  proceedings,,  as  here,  and  it  could  not  be  used  to  suspend 
the  action  of  a  lower  court  in  view  of  the  prophesied  adverse  holding 
in  a  court  of  review.     Ex  parte  Wagner,  249  U.  S.  465,  6Z  L.  Ed.  — . 

Mandamus  may  issue  from  the  supreme  court  to  the  clerk  of  a 
district  court  upon  refusal  under  order  of  the  court,  to  compel  him 
to  file  the  record  in  the  circuit  court  of  appeals  of  a  case  in  which 
the  supreme  court  has  ultimate  discretionary  power  of  review.  Ex 
parte  Abdu,  247  U.  S.  27,  62  L.  Ed.  966. 

See  the  note  on  mandamus  in  U.  S.  v.  Lamont,  39  L.  Ed.  160. 


MANDAMUS.  341 

But  petitioner  charges  that  said  city  of ,  by  the  laws  of 

—  and  its  cliarter,  is  authorized  through  and  by  its  board  of 


mayor  and  aldermen  to  levy  and  collect  taxes  on  all  property, 
privileges  and  polls  subject  to  taxation  for  state  purposes,  for 
the  payment  of  judgments  and  decrees  rendered  against  it,  and 
it  is  the  duty  of  said  board  of  mayor  and  aldermen  to  levy 
and  collect  taxes  sufficient  to  pay  off  and  discharge  the  judg- 
ment aforesaid  in  favor  of  petitioner,  and  the  costs  adjudged 
against  it. 

Petitioner  further  states  that  in  the  year  189 — ,  the  board 

of  mayor  and  aldermen  of  said  city  did  levy  a  tax  of  

cents  on  the  $100  for  water  rent,  and cents  on  the  $100 

for  lights,  collected  the  same,  or  a  large  part  thereof,  and  the 
amount  so  levied  and  collected  did  become,  under  the  contract 
tlien  existing  between  the  city  of and  the  \\'ater  &  Elec- 
tric Light  Company,  a  fund  exclusively  for  the  payment  for 
water  and  lights  under  said  contract,  the  judgment  aforesaid 
being  for  water  and  lights  furnished  under  same  contract.  But 
notwithstanding  its  duty  in  this  respect,  the  board  of  mayor 
and  aldermen  refused  to  pay  over  the  amount  collected  of  said 
lev'y,  and  has  refused  to  enforce  payment  to  itself  from  certain 
taxpayers  of  a  considerable  amount  of  the  levy. 

Petitioner  further  states  that  since  the  rendition  in  his  favor 

of  the  judgment  aforesaid  against  the  city  of  ,  he  has, 

through  his  attorneys,  demanded  payment  of  the  same,  but 
the  said  city  has  failed  and  refused  to  pay  any  part  of  said 
judgment  or  the  costs  incident  thereto,  or  to  make  any  levy 
of  taxes  for  that  purpose. 

Petitioner  further  states  that  he  has  also  had  execution  is- 
sued on  said  judgment,  and  the  same  was,  by  the  marshal, 
presented  for  payment  to  the  otificials  of  said  city,  but  payment 
of  same  was  refused,  and  it  has  been  returned  nulla  bona. 

Petitioner  is  informed  and  believes  that  the  mayor  and 
aldermen  of  the  city  of  have  refused  and  have  deter- 
mined not  to  assess  or  collect  any  taxes  for  the  payment  of  the 


342  SUITS   AT    LAW. 

judgment  aforesaid,  and  he  is  advised  that  he  had  no  other 
adequate  remedy  to  enforce  the  payment  of  said  judgment. 

Petitioner  therefore  prays  that  your  honor  grant  an  order 
for  the  issuance  of  an  alternative  writ  of  mandamus  command- 
ing and  directing  the  city  of to  forthwith  pay  the  amount 

of  plaintiff's  judgment,  with  interest  and  costs,  or  to  appear 
before  the  court  on  some  day  to  be  named  in  said  writ,  and 
show  cause,  if  any  there  be,  why  a  peremptory  writ  of  man- 
damus should  not  issue  requiring  a  sufficient  tax  to  be  levied, 
assessed  and  collected  on  and  out  of  the  taxable  property  within 
the  corporate  limits  of  the  city,  to  pay  said  judgment,  interest 
and  costs,  and  requiring  said  judgment,  interest  and  costs  to 
be  paid  out  of  the  proceeds  of  such  levy,  assessment  and  collec- 
tion, within  ninety  (90)  days  from  the  service  of  said  writ; 
that  said  alternative  writ  of  mandamus  be  issued  and  directed 

to  said  city  of .  C.  L.,  Mayor,  and  to  \A'.  S..  J.  S.,  J.  L., 

R.  J.,  I.  E.,  the  aldermen  of  said  city;  he  further  prays  for  such 
other  and  general  relief  as  he  may  be  entitled  to  in  the  premises. 

This  is  the  first  application  for  writ  of  mandamus  in  this 
cause.  X-  &  X., 

Attorneys  for  Petitioner. 
State  of , County,  ss. 

Personally  appeared  before  me,  W.  P.,  a  notary  public,  W. 
W.,  and  made  oath  in  due  form  of  law  that  he  is  agent  and 
superintendent  of  plaintiff,  is  acquainted  with  the  facts  alleged 
in  the  foregoing  petition,  and  same  are  true  to  the  best  of  his 
knowledge,  information  and  belief.  W.  W. 

Subscribed  and  sworn  to  before  me,  this day  of , 

A.  D. .  W.  P., 

[Seal.]  Notary  Public. 

(1)  Taken  from  Cleveland,  Tenn.,  v.  Cunningham,  Recr.,  98  Fed. 
657,  39  C.  C.  A.  311. 

As  to  when  a  writ  of  mandamus  may  issue  to  compel  state  officers 
to  levy  a  tax  to  satisfy  a  judgment  olitained  in  the  United  States 
court,  see  Knox  County  v.  Aspinwall,  24  How.  383;  Riggs  v.  Johnson 
County,  6  Wall.  184;  Louisiana  v.  U.  S.,  103  U.  S.  289;  Board  v. 
Thompson,  10  C.  C.  A.  154,  61  Fed.  915. 


MANDAMUS.  343 

The  court  may  order  that  the  tax  levy  be  distributed  over  a 
term  of  j-ears  where  the  amount  to  be  collected  is  large  and  it 
appears  too  much  of  a  burden  to  make  the  entire  collection  at  once. 
Graham  v.  Quinlan.  207  Fed.  268,  124  C.  C.  A.  654;  Cleveland  v.  U.  S., 
166  Fed.  677,  93  C.  C.  A.  274. 

In  Cunningham  v.  Cleveland,  152  Fed.  907,  82  C.  C.  .\.  55,  it  is 
said  that  the  order  of  the  court  is  continuous  and  therefore  subject 
to  such  changes  or  amendments  as  the  exigencies  of  the  case  may 
require   from   time  to  time. 

In  Riverside  County  v.  Thompson,  122  Fed.  860,  59  C.  C.  A.  70. 
it  is  said  that  no  notice  or  demand  on  the  taxing  officers  is  neces- 
sary prior  to  the  filing  of  a  petition  for  a  writ  of  mandamus  to 
compel  them  to  levy  a  tax  to  pay  a  judgment  which  has  been  ob- 
tained, the  petition   being  such   notice. 

The  order  may  state  the  amount  to  be  collected  by  referring  to 
the  judgment  and  need  not  specifically  contain  the  statement  of  the 
amount  independently  thereof.  Estill  County  v.  Embry,  144  Fed. 
913,  75  C.  C.  A.  654. 

No.  276. 

Notice  of  Application  for  Writ  of  Mandamus. 

To  the  Board  of  Mayor  and  Aldermen  of  the  City  of : 

You  are  hereby  notified  that  we  will,  on  the  day  of 

,  before  the  Hon.  C.  D.,  at  his  office  in  the  Custom  House 

at ,  apply  for  alternative  writ  of  mandamus  to  be  issued 

by  the  district  court  of  the  United  States  for  the division 

of  the (hstrict  of .  against  you,  the  city  of .  re- 
quiring you  to  levy  a  tax  upon  all  the  property,  privileges  and 
polls  subject  to  levy,  to  pay  and  satisfy  a  judgment  recovered 

by  me  against  you  in  said  court,  for  the  sum  of ($ ) 

dollars. 

Dated  this day  of ,  A.  D. . 

R.  J.,  Receiver. 
By  R.  X..  His  Attorney. 
State  of , County,  ss. 

Personally  appeared  before  me,  W.  P.,  a  notary  public.  W. 

\y..  and  made  oath  that  he.  on  the day  of .  delivered 

a  copy  of  the  foregoing  notice  to  the  mayor  of  the  city  of . 

W.  W. 


344  SUITS    AT    LAW. 


Sworn  to  and  subscribed  before  me,  this day  of  — 

A.  D. .  W.  P., 

[Seal.]  Notary  Public. 


No.  277. 

Petition  for  Writ  of  Mandamus  Directed  to  a  Judge  of  an 
Inferior  Court  to  Compel  Him  to  Allow  an  Appeal  (1). 

United  States  Circuit  Court  of  Appeals  for  the Circuit. 

A.  B.,  Petitioner, 
vs. 
G.  R.,  U.  S.  District  Judge 

for  the District 

of . 

To  the  Honorable  Circuit  Judges  of  the  United  States  holding 
said  Court: 

The  petitioner,  A.  B.,  respectfully  states  that  on  the 


day  of a  suit  was  begun  by  him  against  C.  D.,  in  the  dis- 
trict court  for  the district  of ,  and  was  duly  prose- 
cuted in  said  court.  [Here  state  the  substance  of  the  action  or 
suit.  ] 

The  cause  came  on  to  be  heard  upon  the  pleadings  and  proof 
and  was  argued  by  counsel  for  the  plaintiff  and  by  counsel  for 
the  defendant  and  submitted  to  his  honor,  G.  R.,  for  a  decree. 

On  consideration  whereof  on  the day  of a  decree 

was  entered  therein  in  the  following  words,  to-wit :  [Here 
insert  the  order  or  decree  sought  to  be  revici.vcd.'] 

And  thereupon  on  the  day  of  ,  your  petitioner, 

feeling  himself  aggrieved  by  the  order  of  his  honor,  prayed 
an  appeal  from  said  decree  in  due  form  of  law  and  tendered 
his  bond  with  security  thereon,  which  petition  was  filed  with 

the  clerk  of  said  court  on  the day  of and  thereafter 

was  presented  to  his  honor  for  an  allowance  of  the  appeal. 
And  the  petitioner  further  states  that  on  the  same  day,  to-wit, 


MANDAMUS.  345 

on  the  day  of ,  his  honor,  G.  R.,  refused  to  allow 

said  appeal  for  the  reason  that  no  appeal  was  allowable  from 
said  decree  to  the  said  circuit  court  of  appeals  for  the cir- 
cuit for  the  purpose  of  reviewing  said  decree. 

Wherefore,  your  petitioner,  A.  B.,  prays  for  a  writ  of  man- 
damus to  issue  out  of  this  honorable  court,  directed  to  the 
Hon.  G.  R.,  judge  of  the  district  court  of  the  United  States 

for  the  district  of ,  sitting  at ,  to  compel  said  district 

judge  to  grant  him  an  appeal  in  the  case  of  A.  B.  vs.  C.  D., 
pending  on  the  equity  side  of  said  court,  from  the  decree  en- 
tered by  said  court  in  said  cause  on  the day  of . 

A.  B. 
State  of , County,  ss. 

I,  A.  B.,  the  petitioner  mentioned  and  described  in  the  fore- 
going petition,  do  hereby  make  solemn  oath  that  the  state- 
ments contained  therein  are  true  according  to  the  best  of  my 
knowledge,  information  and  belief.  Those  statements  made 
on  my  own  knowledge  I  know  to  be  true  and  those  statements 
made  upon  information  and  belief  I  verily  believe  to  be  true, 
and  I  have  read  said  petition.  A.  B. 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  B.  R., 

Notary  Public  in  and  for  said  County. 

(1)  A  writ  of  mandamus  will  issue  to  compel  a  court  to  take  juris- 
diction and  to  proceed  to  exercise  such  jurisdiction.  Ex  parte  Brad- 
street,  6  Pet.  774,  s.  c.  7  Pet.  634;  Hollen  Parker,  Petitioner,  131  U.  S. 
221;  Ex  parte  Parker,  120  U.  S.  738;  In  re  Hohorst,  150  U.  S.  658.  But 
not  to  take  jurisdiction  of  a  case  removed  from  a  state  court.  In  re 
Pennsylvania,  137  U.  S.  453.  The  statute,  formerly  25  Stat.  L.  434, 
enacted  Aug.  13,  1888,  is  brought  forward  in  the  Judicial  Code,  Sec. 
28,  and  provides  that  the  "remand  shall  be  immediately  carried  into 
execution,  and  no  appeal  or  writ  of  error  from  the  decision  *  *  * 
etc.,  shall  be  allowed,  and  in  this  case  the  court  held  that  such  stature 
rendered  the  remand  final  and  conclusive  against  mandamus  also. 

It  may  issue  to  compel  a  judge  to  act  but  not  to  control  his  discre- 
tion.   Ex  parte  Newman,  14  Wall.  152;  Ex  part*;  Bradstreet,  6  Pet.  774; 


346  SUITS    AT    LAW. 

Ex  parte  Many,  14  How.  171;   Ex  parte  Chateaugay  Iron  Co.,  128  U. 
S.  554;  Ex  parte  Jordan,  94  U.  S.  248. 

Under  the  act  now  embodied  without  change  as  to  that  feature 
in  the  Judicial  Code,  Sec.  266,  requiring  that  an  application  for 
interlocutory  injunction  to  restrain  state  officers  from  enforcing  d 
state  law  in  certain  cases,  be  heard  before  three  judges,  held  that 
the  order  made  by  a  single  judge  in  such  case  was  unauthorized  and 
mandamus  was  the  proper  remedy  to  require  him  to  vacate  his  order: 
the  statute  made  no  provision  for  appeal  from  the  action  of  a  single 
judge,  and  a  right  of  appeal  is  nowhere  given  in  the  statutes  in  such 
case.  Ex  parte  Metropolitan  Water  Company,  220  U.  S.  539,  55  L. 
Ed.  575.  This  decision  is  of  importance  also  connection  with  the 
act  of  Oct.  22,  1913,  38  Stat.  L.  220,  requiring  a  hearing  before  three 
judges  on  application  for  injunction  affecting  an  urder  of  the  inter- 
state commerce  commission. 


No.  278. 
Order  Granting  Alternative  Writ  of  Mandamus. 

[Caption.] 

On  motion  of  R.  J.,  receiver  of  the  Water  &  Electric  Light 
Company,  on  petition  this  clay  filed   praying  for  alternative 

writ  of  mandamus  to  issue  against  the  city  of  ,  and  the 

mayor  and  aldermen  thereof,  requiring  them  to  levy  ta.xes  to 

pay  a  judgment  obtained  against  them  in  this  court  for  $ . 

notice  of  which  motion  was  given  on  the  day  of  , 

A.  D.  — . 

It  is  ordered  tliat  the  clerk  of  tliis  court  issue  the  alternative 
mandamus  according  to  the  prayer  of  said  i>etition,  on  peti- 
tioner giving  bond  in  the  sum  of  $ ,  to  be  approved  by  the 

court,  and  security  for  costs. 


No.  279. 

Alternative  Writ  of  Mandamus  to  Compel  Levy  of  Tax  to 

Pay  Judgment. 

The  President  of  the  United  States  of  America,  to  the  City  oi 

,  and  to  C.  L.,  Mayor,  and  W.  S.,  J.  S.,  J.  L.,  R.  J. 

and  L  E.,  Aldermen  of  said  City: 
Whereas,  it  appears  from  the  petition  of  R,  J.,  receiver  of 


MANDAMUS.  347 

the  Water  «&  Electric  Light  Company,  that  by  suit  which  he, 
as  such  receiver,  was  by  order  of  court  authorized  to  bring  in 

the  district  court  of  the  United  States  for  the division  of 

the district  of ,  against  the  said  city  of ,  he  did, 

after  appearance  and  defense  made  by  said  city,  and  on  the 

day  of ,  recover  against  said  city  a  judgment  for 

the  sum  of dollars,  and  the  cost  of  said  cause,  amounting 

to  the  additional  sum  of  $ ,  that  the  said  city  of is 

a  municipal  corporation  chartered  and  existing  under  Acts 

passed  by  the  General  Assembly  of  the  state  of ,  and  is 

situated  in county,  and  in  the division  of  the 

district  of ;  and  that  under  the  laws  of the  real  and 

personal  property  of  said  municipal  corporation  held  and  used 
for  its  corporate  purposes,  is  exempt  from  levy  and  sale  by 
execution;  and 

Whereas,  it  is  further  alleged  in  said  petition  that  said  city 

of ,  by  the  laws  of  the  state  of and  its  charter,  is 

authorized  through  and  by  its  board  of  mayor  and  aldermen 
to  levy  and  collect  taxes  on  all  property,  privileges  and  polls 
subject  to  taxation  for  state  purposes,  for  the  payment  of 
judgments  and  decrees  rendered  against  it,  and  it  is  the  duty 
of  said  board  of  mayor  and  aldermen  to  levy  and  collect  taxes 
sufficient  to  pay  off  and  discharge  the  judgment  aforesaid  in 
favor  of  petitioner,  and  the  costs  adjudged  against  it;  that 

in  the  year  the  board  of  mayor  and  aldermen  of  said 

city  did  levy  a  tax  of cents  on  the  $ioo  for  water  rent, 

and cents  on  the  $ioo  for  lights,  and  collected  the  same, 

or  a  large  part  thereof,  and  the  amount  so  levied  and  collected 
did  become,  under  the  contract  then  existing  between  the  city 
of and  the  Water  &  Electric  Light  Company,  a  fund  ex- 
clusively for  the  payment  of  water  and  lights  under  said  con- 
tract —  the  judgment  aforesaid  being  for  water  and  lights 
furnished  under  the  same  contract.  But  that  notwithstanding 
its  duty  in  this  respect  the  said  city  refused  to  pay  over  the 
amount  that  had  been  so  levied  and  collected,  and  has  refused 


348  SUITS   AT    LAW. 

to  enforce  payment  to  itself  from  certain  taxpayers  of  a  con- 
siderable portion  of  the  levy ;  and 

Whereas,  it  is  further  alleged  that  since  the  rendition  of 
said  judgment  petitioner  has  demanded  payment  of  same,  but 
the  said  city  has  failed  and  refused  to  pay  any  part  of  the 
same  or  of  the  costs  incident  thereto,  or  to  make  any  levy  of 
taxes  for  that  purpose;  that  execution  was  issued  on  said 
judgment  and  placed  in  the  hands  of  the  marshal,  and  pre- 
sented by  him  to  said  city,  but  payment  of  same,  or  any  part 
thereof,  was  refused,  and  it  has  been  returned  nulla  bona;  and 

Whereas,  it  is  further  alleged  that  the  board  of  mayor  and 
aldermen  of  said  city  of have  refused  and  have  deter- 
mined not  to  assess  or  collect  any  taxes  for  the  payment  of 
the  judgment  aforesaid,  and  that  petitioner  has  no  other 
remedy  or  means  by  which  to  enforce  the  payment  of  said 
judgment  except  as  prayed  in  said  petition  for  writ  of  man- 
damus commanding  the  city  of and  the  board  of  mayor 

and  aldermen  thereof  forthwith  to  pay  the  amount  of  peti- 
tioner's judgment,  with  interest  and  costs,  or  to  levy,  assess 
and  collect  a  sufficient  amount  of  taxes  on  and  out  of  the  tax- 
able property,  privileges  and  polls  within  the  corporate  limits 
of  said  city;  and 

Whereas,  it  has  been  ordered  by  the  Hon.  C.  D.,  sitting  as 

judge  of  the  district  court  of  the  United  States  for  the 

division  of  the district  of ,  that  writ  of  mandamus 

issue  as  prayed. 

You  are,  therefore,  commanded,  unless  said  judgment,  with 
interest  and  cost,  is  paid,  forthwith  to  levy,  assess  and  collect 
on  and  out  of  all  the  property,  privileges  and  polls  within  the 
corporate  limits  and  subject  to  taxation,  a  sufficient  amount 
to  pay  said  judgment,  interest  and  costs,  and  to  pay  the  same 
out  of  the  amount  so  levied  and  collected,  or  to  appear  before 

said  district  court  of  the  United  States  for  the division 

of  the  district  of ,  on  the  day  of  ,  and 


MANDAMUS,  349 

show  cause,  if  any  there  be,  why  said  tax  should  not  be  levied, 
assessed  and  collected  as  hereinbefore  ordered. 

Herein  fail  not,  and  have  you  then  and  there  this  writ. 

Witness  the  Hon.  Melville  W.  Fuller,  chief  justice  of  the 

supreme  court  of  the  United  States,  at ,  in  said  district, 

the day  of ,  in  the  year  of  our  Lord  nineteen  hun- 
dred and . 

[Seal.]  B.  R., 

Clerk  of  the  District  Court  of  the  United  States 
for  the District  of . 


No. 


No.  280. 

Answer  of  a  U.  S.  Judge  to  an  Alternative  Writ  of  Mandamus 
to  Allow  an  Appeal  from  an  Order  Refusing  to  confirm  a 
Composition  in  Bankruptcy  (i). 

United  States  Circuit  Court  of  Appeals,  Circuit. 

United  States  of  America,  ex  rel. 

A.  D,,  Bankrupt,  Petitioner, 

vs. 

G.  R.,  United  States  District  Judge 

for  the District  of . 

The  answer  of  G.  R.,  judge  of  the  District  Court  of  the 

United  States  for  the District  of ,  to  the  rule  upon 

him  to  show  cause  why  a  peremptory  mandamus  should  not 
issue  commanding  him,  in  said  court,  to  allow  an  appeal  to 
A.  B.,  petitioner,  from  a  decree  filed  and  entered  in  said  cause 
,  disapproving  a  composition  proposed  by  said  petitioner. 

The  respondent  respectfully  answers  and  certifies  to  the 
honorable  Circuit  Court  of  Appeals,  for  the circuit : 

First.  That  he  supposes  the  petitioner  has  correctly  set  out 
the  matters  appearing  of  record  in  the  proceedings  in  bank- 
ruptcy, so  far  as  in  said  petition  he  undertakes  to  relate  them, 
but  for  greater  certainty  respondent  refers  to  the  record  itself 


350 


SUITS    AT    LAW. 


when  produced  in  evidence  for  accurate  information  as  to  the 
iTiatters  and  things  therein  recorded. 

Second.  Referring  to  the  general  orders  in  bankruptcy  No. 
36,  regulating  appeals  from  courts  of  bankruptcy,  respondent 
submits  whether  the  said  petition  for  mandamus  against  him 
be  not  vexatious  and  without  authority  of  law,  inasmuch  as 
the  appeal  demanded  might  have  been  allowed,  or  may  now  be 
allowed,  if  demandable  in  law,  by  any  of  the  judges  of  this 
court,  and  presumably  by  the  court  itself. 

Third.  Respondent  denied  the  appeal  demanded  as  set  out 
in  the  petition  for  a  mandamus,  solely  for  the  reason  set  forth 
by  him  in  the  memorandum  endorsed  on  the  application  there- 
for, as  found  in  the  record  of  said  proceedings  in  bankruptcy, 
and  appearing  in  the  printed  record  of  the  petition  for  man- 
damus at  pages  6  and  7,  and  again  at  pages  16  and  17.  Re- 
spondent now  submits  that  no  appeal  was  or  is  now  demand- 
able  in  law  from  the  said  order  complained  of  by.  the  petitioner, 
to  wit,  the  order  of  the  26th  day  of  May,  1900,  disallowing 
and  refusing  to  confirm  the  composition  offered  by  the  peti- 
tioner to  his  creditors,  as  appears  by  the  record  of  the  pro- 
ceedings in  bankruptcy. 

Fourth.  Respondent  is  advised  that  it  is  not  necessary  that 
he  should  make  any  further  or  other  answer  to  the  rule  afore- 
said than  this  herein  contained,  nor  more  specifically  to  any 
of  the  allegations  set  forth  in  the  petition  for  mandamus  afore- 
said. And  having  fully  answered  said  rule,  he  prays  to  be 
hence  dismissed  with  all  proper  costs. 

And  these  are  the  causes  and  reasons  which  this  respondent 
has  offered  why  a  mandamus  should  not  issue,  commanding 
him  to  allow  said  appeal.  But  he  respectfully  submits  to  the 
judgment  of  the  court  and  will  enforce  by  order  any  direction 
given  by  the  court  in  the  premises. 

Respondent  respectfully  refers  to  brief  of  counsel  for  Heber 
Jones  filed  in  this  honorable  court,  and  the  authorities  referred 


MANDAMUS.  351 

to  in  support  and  maintenance  of  the  positions  assumed  by 
this  answer.  G.  R., 

Judge  of  the  District  Court  of  the  United  States 
for  the  District  of  . 

(i)  Taken  from  record  in  U.  S.  vs.  Hammond,  lOO  Fed.  Rep.  1006,  40 
C.  C.  A.  689. 


No.  281. 

Order    Sustaining     Demurrer    to     Defense    to    Alternative 
Writ  of  Mandamus. 

ICaption.'] 

This  cause  came  on  to  be  heard  upon  the  demurrer  of  the 
relator  to  the  return  and  answer  of  the  defendant  to  the 
alternative  writ  of  mandamus,  and  the  same  having  been 
heard  upon  argument  of  counsel,  and  the  court  being  of  the 
opinion  that  such  return  presents  no  valid  and  sufficient  de- 
fense, and  that  the  demurrer  is  well  taken,  the  same  is  sus- 
tained, and  the  said  return  adjudged  insufficient  as  presenting 
no  sufficient  defense. 

It  is,  therefore,  adjudged  that  the  plaintiff  is  entitled  to 
proceed  as  if  no  return  had  been  made. 


No.  282. 

Order  Granting  Alternative  Writ  of  Mandamus  Directed  to  a 
District  Judge,  and  Stay  of  Execution  (i). 

United  States  Circuit  Court  of  Appeals, 

For  the Circuit. 

United  States  of  America  ex  rel.  C.  D. 

vs. 
Honorable  G.  R.,  U.  S.  District  Judge, 

for  the District  of . 

On  this  day  a  petition  was  presented  for  a  writ  of  mandamus 


352  SUITS    AT    LAW. 

to  be  directed  to  the  Honorable  G.  R.,  United  States  district 

judge  for  the district  of ,  requesting  him  to  allow  an 

appeal  upon  the  application  of  the  respondent  in  a  certain 
proceeding  wherein  A.  B.  is  plaintiff  and  C.  D,  is  defendant, 

pending  in  the  district  court  of  the  United  States  for  the 

district  of . 

On  consideration  whereof,  it  is  hereby  ordered  that  a  rule 
to  show  cause  why  said  writ  should  not  issue  be  granted.  It 
is  further  ordered  that  the  petition,  exhibits  and  a  copy  of  this 
order  be  printed  by  the  direction  of  the  clerk  of  this  court,  and 

served  upon  the  Honorable  G.  R.,  district  judge  for  the 

district  of ,  in  lieu  of  issuing  a  rule  to  show  cause,  with  a 

request  that  his  honor,  G.  R.,  reply  thereto  within  thirty  days 
after  the  filing  of  the  printed  record  in  this  court. 

It  is  further  ordered  that  execution  in  the  above-mentioned 

cause  in  the  district  court  of  the  United  States  for  the  

district  of be  stayed  until  the  further  order  of  this  court 

upon  the  petitioner,  C.  D.,  giving  a  bond,  to  be  approved  by 
the  district  judge,  in  a  sum  twice  the  amount  of  the  decree 
rendered  against  him  by  said  district  court  conditioned  to  pay 
damages  and  costs  and  abide  the  decree  of  this  court. 

It  is  further  ordered  that  a  certified  copy  of  this  order  be 

sent  to  the  clerk  of  the  district  court  for  the district  of 

' to  be  filed  with  the  proceedings  above  mentioned  in  that 

court  and  to  operate  as  a  stay  of  proceedings  therein  in  said 
cause  until  the  further  order  of  this  court. 

(1)  Taken  from  the  record  in  the  case  of  Michigan  Central  R.  R. 
Co.  V.  Swan,  in  the  United  States  circuit  court  of  appeals  for  the  sixth 
circuit  (not  reported). 

In  practice  a  rule  to  show  cause  is  rarely  issued  to  a  judge;  a  request 
that  he  reply  to  the  petition  is  ordinarily  sufficient.  The  judge  there- 
upon files  his  answer  or  other  pleading  without  formal  service  of 
process.   , 


MANDAMUS.  353 

No.  283. 

Order  for  Alternative  Writ  of  Mandamus  to  be  Directed  to 

a  Judge  (i). 

The  Supreme  Court  of  the  United  States. 

Ex  parte  Martha  Bradstreet  in  the  Matter 

of  Martha  Bradstreet, 

against 

Apollos  Cooper  et  al. 

Mr.  Jones,  of  counsel  for  the  demandant  in  the  above  named 
cases,  moved  the  court  for  a  rule  to  be  granted,  to  be  served 
on  the  district  judge  of  the  District  Court  of  the  United  States 
for  the  Northern  District  of  New  York,  commanding  him  to 
be  and  appear  before  this  court,  either  in  person  or  by  an  at- 
torney of  this  court,  on  the  first  day  of  the  next  January  term 
of  this  court,  to  wit,  on  the  second  Monday  of  January, 
Anno  Domini  1833,  to  show  cause,  if  any  he  have,  why  a 
mandamus  should  not  be  awarded  to  the  said  district  judge  of 
the  northern  district  of  New  York,  commanding  him. 

First.  To  reinstate,  and  proceed  to  try  and  adjudge  accord- 
ing to  the  law  and  right  of  the  case,  the  seVeral  writs  of  right 
and  mises  thereon  joined,  lately  pending  in  said  court,  and 
said  to  have  been  dismissed  by  order  of  said  court,  between 
Martha  Bradstreet,  demandant,  and  Apollos  Cooper  et  al., 
tenants. 

Second.  Requiring  said  court  to  admit  such  amendments 
in  the  form  of  pleading,  or  such  evidence  as  may  be  necessary 
to  aver  or  to  ascertain  the  jurisdiction  of  said  court  in  the  sev- 
eral suits  aforesaid. 

Third.  Or  if  sufficient  cause  shall  be  shown  by  the  said 
judge  on  the  return  of  this  rule,  or  should  otherwise  appear  to 
this  court,  against  a  writ  of  mandamus  requiring  the  matters 
and  things  aforesaid  to  be  done  by  the  said  judge,  then  to 
show  cause  why  a  writ  of  mandamus  should  not  issue  from 
this  court,  requiring  the  said  judge  to  direct  and  cause  full 
records  of  the  judgments  or  orders  of  dismission  in  the  scv- 


354  SUITS    AT    LAW. 

eral  suits  aforesaid,  and  of  the  processes  of  the  same,  to  be 
duly  made  up  and  filed,  so  as  to  enable  this  court  to  re-exam- 
ine and  decide  the  grounds  and  merits  of  such  judgments  or 
orders  upon  writs  of  error,  such  records  showing  upon  the 
face  of  each  what  judgments  or  final  orders  dismissing,  or 
otherwise  definitely  disposing  of  said  suits,  were  rendered  by 
the  said  district  court,  at  whose  instance,  upon  what  grounds, 
and  what  exceptions  or  objections  were  reserved  or  taken  by 
said  demandant,  or  on  her  behalf,  to  the  judgments  or  de- 
cisions of  the  said  district  court  in  the  premises,  or  to  the  mo- 
tions whereon  such  judgments  or  decisions  were  found;  and 
what  motion  or  motions,  application  or  applications,  were 
made  to  said  court  by  the  demandant,  or  on  her  behalf;  and 
either  granted  or  overruled  by  said  district  court,  both  before 
and  after  said  judgments  or  decisions  dismissing  or  otherwise 
finally  disposing  of  said  suits ;  especially  what  motions  or  ap- 
plications were  made  by  said  demandant  or  on  her  behalf  to 
the  said  district  court,  to  be  admitted  to  amend  her  counts  in 
the  said  suits,  or  to  produce  evidence  to  establish  the  value  of 
the  lands,  etc.,  demanded  in  such  counts,  together  with  all  the 
papers  filed,  and  proceedings  had  in  said  suits  respectively. 

On  consideration  whereof,  it  is  now  here  considered  and 
ordered  by  this  court  that  the  rule  prayed  for  be,  and  the  same 
is  hereby  granted,  returnable  to  the  first  day  of  the  next  Jan- 
uary term  of  this  court,  to  wit,  on  the  second  Monday  of 
January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-three.     Per  Mr.  Chief  Justice  Marshall. 

(i)     Taken  from  6  Peters  774.     See  note  to  No.  146a. 


No.  284. 

Motion  for  Peremptory  Writ  of  Mandamus. 

[Caption.'] 

Relator  comes,  by  his  attorneys,  and  moves  the  court  fof 
an  order  directing  the  issuance  of  a  peremptory  writ  of  man- 


MANDAMUS.  355 

damus  as  prayed  in  the  petition  filed  in  this  cause,  and  direct- 
ing defendant  to  forthwith  levy  and  collect  a  tax  sufficient  to 
pay  the  judgment  referred  to  in  said  petition  and  the  alterna- 
tive writ  of  mandamus,  together  with  interests  and  costs,  be- 
cause the  return  of  defendant  shows  no  good  and  sufficient 
reason  why  said  peremptory  writ  should  not  be  awarded. 

R.  X., 
Attorney  for  Relator. 


No.  285. 

Peremptory  Writ  of  Mandamus  Directed  to  Judge  of  District 

Court  (i). 

United  States  of  America,  ss. 

To  the  Hon.  Alfred  Concklin,  Judge  of  the  District  Court  of 
the  United  States  for  the  Northern  District  of  New  York, 
Greeting : 
Whereas,  one  Martha  Bradstreet  hath  heretofore  com- 
menced and  prosecuted  in  your  court  several  certain  real  ac- 
tions, or  writs  of  right,  in  your  court  lately  pending  between 
the  said  Martha  Bradstreet,  demandant,  and  the  following 
named  tenants  severally  and  respectively,  to  wit,  Apollos 
Cooper  and  other  [naming  them].  And  whereas,  heretofore, 
to  wit,  at  a  session  of  the  Supreme  Court  of  the  United  States, 
held  at  Washington  on  the  second  Monday  of  January,  in  the 
year  1832,  it  appeared,  upon  the  complaint  of  the  said  Mar- 
tha Bradstreet,  among  other  things,  that  at  a  session  of  your 
said  court,  lately  before  holden  by  you,  according  to  law,  all 
and  singular  the  said  writs  of  right  then  and  there  pending 
before  your  said  court,  upon  the  several  motions  of  the  ten* 
ants  aforesaid,  were  dismissed  for  the  reason  that  there  was 
no  averment  of  the  pecuniary  value  of  the  lands  demanded 
by  the  said  demandant  in  the  several  counts  filed  and  exhibited 
by  the  said  demandant  against  the  several  tenants  aforesaid; 
which  orders  of  your  said  court,  so  dismissing  the  said  actions, 


356  SUITS    AT    LAW. 

were  against  the  will  and  consent  of  said  demandant ;  where- 
upon the  said  Supreme  Court,  at  the  instance  of  said  demand- 
ant, granted  a  rule  requiring  you  to  show  cause,  if  any  you 
had,  among  other  things,  why  a  writ  of  mandamus  from  the 
said  Supreme  Court  should  not  be  awarded  and  issued  to  you, 
commanding  you  to  reinstate  and  proceed  to  try  and  adjudge, 
according  to  the  law  and  right  of  the  case,  the  several  writs  of 
right  aforesaid,  and  the  mises  therein  joined.  And  whereas, 
at  the  late  session  of  the  said  Supreme  Court  held  at  Wash- 
ington on  the  second  Monday  of  January  in  the  year  1833, 
you  certified  and  returned  to  the  said  Supreme  Court,  together 
with  the  said  rule,  that  after  the  mises  had  been  joined  in  the 
several  causes  mentioned  in  the  said  rule,  motions  were  made 
therein,  on  the  part  of  the  tenants,  that  the  same  should  be 
dismissed  upon  the  ground  that  the  counts  respectively  con- 
tained no  allegation  of  the  value  of  the  matter  in  dispute,  and 
that  it  did  not  therefore  appear,  by  the  pleadings,  that  the 
causes  were  within  the  jurisdiction  of  the  court :  that,  in  con- 
formity with  what  appeared  to  have  been  the  uniform  lan- 
guage of  the  national  courts  upon  the  question,  and  your  own 
views  of  the  law,  and  in  accordance  especially  with  several 
decisions  in  the  circuit  court  for  the  third  circuit  (see  4  Wash. 
C.  C.  Rep.  482,  624),  you  granted  their  motions;  and  assum- 
ing that  the  causes  were  rightly  dismissed,  it  follows  of 
course  that  you  ought  not  to  be  required  to  reinstate  them  un- 
less leave  ought  also  to  be  granted  to  the  demandant  to  amend 
her  counts;  and  whereas,  afterwards,  to  wit,  at  the  same  ses- 
sion of  the  said  Supreme  Court  last  aforesaid,  upon  considera- 
tion of  your  said  return  and  of  the  cause  shown  by  you  therein 
against  the  said  rule's  being  made  absolute,  and  against  the 
awarding  and  issuing  of  the  said  writ  of  mandamus,  and 
upon  consideration  of  the  arguments  of  counsel,  as  well  on 
your  behalf,  showing  cause  as  aforesaid,  as  on  behalf  of  the 
said  demandant,  in  support  of  the  said  rule,  it  was  considered 
by  the  said  Supreme  Court,  that  you  had  certified  and  returned 


MANDAMUS.  357 

to  the  said  court  an  insufficient  cause  for  having  dismissed  the 
said  actions,  and  against  the  awarding  and  issuing  of  the  said 
writ  of  mandamus,  pursuant  to  the  rule  aforesaid;  the  said 
Supreme  Court  being  of  the  opinion,  and  having  determined 
and  adjudged  upon  the  matter  aforesaid,  that  in  cases  where 
the  demand  is  not  made  for  money,  and  the  nature  of  the  ac- 
tion does  not  require  the  value  of  the  thing  demanded  to  be 
stated  in  the  declaration,  the  practice  of  the  said  Supreme 
Court  and  of  the  courts  of  the  United  States,  is  to  allow  the 
value  to  be  given  in  evidence ;  that  in  pursuance  of  this  prac- 
tice, the  demandant  in  the  suits  dismissed  by  order  of  the 
judge  of  the  District  Court  had  a  right  to  give  the  value  of 
the  property  demanded  in  evidence,  either  at  or  before  the 
trial  of  the  cause,  and  would  have  a  right  to  give  it  in  evidence 
in  the  said  Supreme  Court;  consequently  that  she  cannot  be 
legally  prevented  from  bringing  her  cases  before  the  said  Su- 
preme Court;  and  it  was  also  then  and  there  considered  by 
the  said  Supreme  Court  that  the  peremptory  writ  of  the  United 
States  issue,  requiring  and  commanding  you,  the  said  judge 
of  the  district  court,  to  reinstate  and  proceed  to  try  and  ad- 
judge, according  to  the  law  and  right  of  the  case,  the  several 
writs  of  right  and  mises  therein  joined,  lately  pending  in  your 
said  court  between  the  said  Martha  Bradstreet,  demandant, 
and  Apollos  Cooper  and  others,  the  tenants  aforesaid;  there- 
fore you  are  hereby  commanded  and  enjoined  that  immedi- 
ately after  the  receipt  of  this  writ,  and  without  delay,  you 
reinstate  and  proceed  to  try  and  adjudge,  according  to  the 
law  and  right  of  the  case,  the  several  writs  of  right  and  the 
mises  therein  joined,  lately  pending  in  your  said  court  between 
the  said  Martha  Bradstreet,  demandant,  and  the  said  Apollos 
Cooper  and  others,  the  tenants  herein  above  named,  so  that 
the  complaint  be  not  again  made  to  the  said  Supreme  Court ; 
and  that  you  certify  perfect  obedience  and  due  execution  of 
this  writ  to  the  said  Supreme  Court,  to  be  held  on  the  first 


358  SUITS    AT    LAW. 

Monday  in  August  next.     Hereof  fail  not  at  your  peril,  and 
have  fhen  there  this  writ. 

Witness  the  Honorable  John  Marshall,  chief  justice  of  said 
supreme  court,  the  second  Monday  of  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-three. 

[Seal.]  W.  T.  Carol, 

Clerk  of  the  Supreme  Court  of  the  United  States. 

(1)  Taken  from  Ex  parte  Bradstreet,  7  Pet.  648. 

As  to  when  mandamus  will  issue  to  an  inferior  court,  see  Ex  parte 
Schollenberger,  96  U.  S.  369;  Pennsylvania  Co.,  Petitioner,  137  U.  S. 
451-453;  .American  Construction  Co.  v.  Jacksonville,  etc.,  Ry.,  148  U. 
S.  372,  379;  Hohorst,  Petitioner,  150  U.  S.  653,  664;  In  re  Grossmayer, 
Petitioner,  177  U.  S.  48. 

Dowagiac  Mfg.  Co.  v.  McSherry  Co.,  155  Fed.  524,  84  C.  C.  A.  38, 
to  the  effect  that  mandamus  will  issue  from  the  circuit  court  of  appeals 
to  a  district  court  where  the  action  of  the  latter  fell  short  of  or 
transcended  its  jurisdiction  and  no  other  adequate  remedy  appeared. 

That  an  inferior  court  can  not  be  reviewed  and  reversed  in  an 
action  in  mandamus,  when  the  act  complained  of  is  within  its  juris- 
diction and  discretion,  see  Barnes  v.  Lyons,  187  Fed.  881,  110  C.  C.  A.  IS. 

Mandamus  will  issue  from  the  supreme  court  to  an  inferior  court 
to  compel  it  to  set  aside  a  decree  made  after  the  term  and  vacating 
a  decree  of  dismissal  of  a  defendant,  and  to  assume  no  jurisdiction 
thereafter  over  such  defendant.  In  re  Metropolitan  Trust  Co.,  218 
U.  S.  312,  54  L.  Ed.  1051. 

If,  the  lower  court  commits  error  in  administering  the  mandate 
of  the  reviewing  court,  mandamus  may  be  resorted  to  for  its  correc- 
tion.    Sou.  Bldg.  Assn.  v.  Carey,  117  Fed.  328. 


No.  286. 

Order  Making  Alternative  Writ  of  Mandamus  Peremptory. 

[Caption.] 

This  cause  came  on  to  be  heard  on  motion  of  relator  for 
peremptory  writ  of  mandamus,  of  which  motion  notice  was 
given  to  defendants,  and  the  said  defendants  having  failed  to 
make  any  further  return  or  defense,  it  is  considered  by  the 
court  that  said  motion  be  allowed. 

It  is,  therefore,  decreed  that  the  alternative  writ  of  man- 
damus be  made  peremptory,  and  that  unless  relator's  judgment, 


MANDAMUS.  359 

interest  and  costs  be  forthwith  paid,  a  peremptory  writ  of 
mandamus  will  issue  requiring  defendants,  or  their  board  of 
mayor  and  aldermen,  to  levy,  assess  and  collect  on  and  out  of 
all  tlie  property  within  the  corporate  limits  and  subject  to  tax- 
ation, a  sullicient  amount  to  pay  said  judgment,  interest  and 
cost,  and  to  jjay  the  same  out  of  the  amount  so  levied  and 
collected. 

Defendants  will,  immediately  after  the  issuance  of  said  writ, 
make  the  levy  of  taxes  aforesaid,  and  will  on  or  before  the 

day  of .  make  return  to  this  court,  showing-  that  said 

levy  has  been  made,  the  amount  levied,  etc. 

And  after  said  levy  has  been  made  defendants  will  proceed 
with  all  due  diligence  to  the  collection  of  same,  and  continue 
until  a  sufficient  sum  has  been  collected  to  pay  the  judgment 
aforesaid,  with  interest  and  costs. 

Defendants  will  pay  the  costs  of  this  proceeding,  for  which 
execution  may  issue. 

But  on  application  of  defendants  the  issuance  of  the  per- 
emptory wTit  herein  ordered,  will  be  suspended  until  the 

day  of next,  to  give  said  defendants  an  opportunity  to 

prepare  petition  for  writ  of  error  and  other  papers  necessary 
for  the  review  of  this  decree  by  the  court  of  appeals. 


No.  287. 

Order  that  Marshal  Protect  Tax  Collector  in  the  Discharge 
of  His  Duty  (1). 

The  District  Court  of  the  United  States  for  the  District  of 
Kentucky. 

A.  B. 
vs. 

D.  J.,  Presiding  Judge  of 

County  Court  and County. 

This  day  came  the  plaintiff,  A.  B.,  of , ,  by  counsel, 

and  filed  a  report  of  E.  M.,  the  special  collector  of  taxes,  here- 


360  SUITS    AT    LAW. 

tofore  appointed  herein,  and  it  appearing  from  the  said  report 
and  the  exhibits  filed  therewith,  that  there  exists  in  the  county 

of such  a  hostile  public  sentiment  against  the  collection 

of  the  special  tax  of cents  on  each  $100.00  of  property 

in  said  county  subject  to  taxation  under  the  general  revenue 

laws  of  the  state  of for  the  year  1889,  as  shown  by  the 

assessor's  list  of  said  county,  of  property  liable  for  taxation 
as  of day  of ,  said  levy  of  taxes  being  the  same  here- 
tofore referred  to  in  the  former  orders  of  the day  of , 

and  the day  of ;  and  it  further  appearing  from  said 

report  this  day  filed  that  threats  of  violence  and  other  hostile 
opposition  to  the  collection  of  said  tax  by  said  special  collector 
E.  M.   have  been  made  by  individuals  and  published  in  the 

newspapers  in  the  said  county  of ,  and  it  appearing  that 

the  said  special  collector  E.  M.  has  been  deterred  from  the  per- 
formance of  his  duties  as  special  collector  of  taxes  herein,  and 
it  being  the  opinion  of  the  court  that  a  necessity  has  arisen  for 
the  further  exercise  of  its  power  and  authority  to  enforce 
obedience  to  the  judgment  and  orders  hereinbefore  made,  it  is 
now  ordered  that  the  United  States  marshal  for  the dis- 
trict of ,  do  proceed  without  unnecessary  delay,  with  such 

force  of  deputies  general  or  special  as  may  be  necessary  in  his 
judgment  to  the  county  of ,  in  the  state  of ,  and  re- 
port with  such  force  to  the  said  E.  M.  for  duty,  and  the  said 
marshal  and  his  force  shall  be  and  remain  subject  to  the  orders 
of  said  E.  M.  as  collector  as  aforesaid  while  engaged  in  the 
performance  of  his  duties  as  such  collector  as  aforesaid  and  he 
shall  see  to  it  that  the  said  E.  M.  collector  shall  be  fully  and 
amply  protected  from  violence  in  the  performance  of  his  duties 
as  special  tax  collector  herein,  and  said  United  States  marshal 
shall  protect  all  property  levied  upon  or  seized  by  said  E.  M. 
by  virtue  of  his  authority  as  tax  collector. 

The  said  United  States  marshal  shall  not  be  required  to 
enter  upon  the  performance  of  the  duties  required  of  him  un- 


MANDAMUS.     -  361 

der  this  order,  until  the  plaintiff,  or  some  one  for  the  plaintiff, 
has  executed  to  him  a  satisfactory  bond  sufficient  to  cover  the 
expenses  to  be  incurred  by  him  in  the  performance  of  his  duties 
required  herein,  and  a  fair  compensation  for  the  services  to  be 
performed  by  said  marshal  and  his  deputies  or  shall  have  pro- 
vided a  sum  of  money  sufficient  to  cover  said  expenses  and 
compensation. 

It  is  further  ordered  that  all  questions  as  to  the  expenses 
necessarily  incurred  in  the  execution  of  this  order,  including- 
transportation  and  subsistence  for  the  men  and  stock  employed 
and  compensation  to  the  marshal  and  his  deputies  and  as  to 
whether  said  expenses  shall  be  taxed  as  costs  of  collection  of 
said  tax  is  reserved  for  further  order  of  the  court. 

Said  collector  E.  M.  and  the  said  United  States  marshal  are 
ordered  to  keep  an  account  of  moneys  paid  out  on  account  of 
expenses  in  the  execution  of  this  order  and  to  report  the  same 
to  this  court, 

(1)  This  order  was  entered  in  the  case  of  Citizens'  National  Bank  v. 
Muhlenberg  County,  pending  in  the  circuit  court  of  the  United  States 
for  the  district  of  Kentucky  at  Louisville. 


No.  288. 

Petition   for  Writ  of   Mandamus   to   Require  United   States 
Auditor  to  Pay  a  Judge's  Salary. 
[Caption.] 

To  the  Honorable,  the  Judge  of  the  District  Court  of  the 
Canal  Zone,  sitting  in  the  Balboa  Division : 

The  petition  of  William  H.  Jackson,  of  Ancon,  Canal  Zone, 
respectfully  showeth : 

First.  That  your  petitioner  is  the  duly  appointed,  qualified 
and  acting  judge  of  the  district  court  of  the  Canal  Zone,  hav- 
ing been  appointed  thereto  for  a  term  of  four  years  by  the 


362  SUITS    AT    LAW. 

President  of  the  United  States,  and  having  been  confirmed  by 
the  Senate  of  the  United  States,  and  thereafter,  to-wit,  on  the 
first  day  of  May,  1914,  was  duly  sworn  and  assumed  the  duties 
of  his  office. 

Second.  That  pursuant  to  the  Act  of  Congress,  approved 
August  24.  1912,  also  known  as  the  "Panama  Canal  Act,"  it 
v^as  provided  that  the  district  judge  of  the  Canal  Zone  "shall 
receive  the  same  salary  paid  to  the  district  judges  of  the  United 
States;"  that  is  to  say,  the  sum  of  $6,000,  United  States  cur- 
rency, per  annum,  payable  in  monthly  installments  of  $500 
each. 

Third.  That  the  Congress  of  the  United  States  has  hereto- 
fore appropriated  funds  for  the  payment  of  the  salary  of  your 
petitioner,  and  that  the  funds  are  now  available  for  that  pur- 
pose. 

Fourth.  That  H.  A.  A.  Smith,  the  above-named  respondent, 
is  now,  and  was  at  all  times  hereinafter  mentioned,  the  duly 
appointed,  qualified  and  acting  auditor  of  the  Panama  Canal, 
and  as  such  it  was  his  duty,  among  other  things,  to  audit,  issue 
and  deliver  each  month  to  your  petitioner,  the  warrant,  voucher 
or  pay  check  for  the  payment  of  the  monthly  salary  due  to  your 
petitioner,  and  to  approve  and  audit  the  said  warrant,  voucher 
or  pay  check,  in  such  form  and  manner  that  vour  petitioner 
may  collect  and  receive  the  cash  thereon  from  the  paymaster 
of  the  Panama  Canal  from  the  funds  appropriated  by  the  Con- 
gress as  aforesaid. 

Fifth.  That  during  the  month  of  December,  1914,  3'our 
petitioner  well  and  truly  performed  his  duties  as  judge  of  the 
said  district  court  of  the  Canal  Zone,  and  upon  the  termination 
of  said  month  became  entitled  to  receive  his  warrant,  voucher 
or  pay  check  for  the  payment  of  his  monthly  salary  in  the  sum 
of  $500,  and  it  became  and  was  the  legal  duty  of  the  said  H.  A. 
A.  Smith,  auditor  of  the  Panama  Canal,  to  audit,  approve  and 
issue  said  warrant,  voucher  or  pay  check,  and  cause  the  same 
to  be  delivered  unto  yo.ur  petitioner. 


MANDAMUS.  363 

Sixth.  Tliat  notwithstanding  the  fact  your  petitioner  was 
legally  entitled  to  receive  the  said  warrant,  voucher  or  pay 
check  for  the  full  sum  of  $500,  United  States  currency,  in  pay- 
ment of  his  monthly  salary  for  the  month  of  December,  1914, 
at  the  termination  of  said  month,  and  that  it  is  and  was  the 
legal  duty  of  the  said  H.  A.  A.  Smith,  auditor  of  the  Panama 
Canal,  to  audit,  issue  and  deliver  to  your  petitioner  the  said 
warrant,  voucher  or  pay  check,  for  the  full  sum  oi  $500,  United 
States  currency,  the  said  H.  A.  A.  Smith,  auditor  as  aforesaid, 
failed  and  refused,  and  still  fails  and  refuses,  to  audit,  issue  and 
deliver  to  your  petitioner,  the  said  warrant,  voucher  or  pay 
check  for  the  full  amount  of  the  monthly  salary  due  him  for 
the  month  of  December,  1914,  and  has  unlawfully  withheld 
and  still  withholds  from  the  amount  due  your  petitioner,  the 
sum  of  $170.07,  to  secure  the  payment  of  an  alleged  indebted- 
ness, which  the  said  H.  A.  A.  Smith,  auditor  as  aforesaid,  un- 
lawfully and  willfully  pretended,  and  still  pretends  is  due  from 
your  petitioner  unto  the  Panama  Canal  or  to  the  United  States 
Government.  That  although  your  petitioner  has  demanded 
the  issuance  and  delivery  of  the  said  warrant,  voucher  or  pay 
check  covering  the  sum  of  $170.07,  unlawfully  withheld  as 
aforesaid,  the  said  H.  A.  A.  Smitli,  auditor  of  the  Panama 
Canal,  has  failed  and  refused  and  still  fails  and  refuses  so  to  do. 

Seventh.  That  during  the  month  of  March,  1916,  your  peti- 
tioner well  and  truly  performed  his  duties  as  judge  of  the  dis- 
trict court  of  the  Canal  Zone,  and  upon  the  termination  of  said 
month  became  entitled  to  receive  the  warrant,  voucher  or  pay 
check  for  the  payment  of  his  monthly  salary  in  the  full  sum  of 
$500,  United  States  currency,  and  it  became  and  was  the  legal 
duty  of  the  said  H.  A.  A  Smith,  auditor  of  the  Panama  Canal, 
to  audit  and  issue  said  warrant,  voucher  or  pay  check  and 
cause  the  same  to  be  delivered  to  your  petitioner.  That  not- 
withstanding the  fact  that  your  petitioner  is  legally  entitled  to 
receive  the  warrant,  voucher  or  pay  check  for  the  full  sum  of 


364  SUITS    AT    LAW. 

$500,  United  States  currency,  in  payment  of  his  salary  for  the 
month  of  March,  1916,  and  that  it  is  the  legal  duty  of  the  said 
H.  A.  A.  Smith,  auditor  of  the  Panama  Canal,  to  audit,  issue 
and  deliver  to  your  petitioner  the  said  warrant,  voucher  or  pay 
check  for  the  full  sum  of  $500,  United  States  currency,  the  said 
H.  A.  A.  Smith,  auditor  as  aforesaid,  has  failed  and  refused 
and  still  fails  and  refuses  to  audit,  issue  and  deliver  the  said 
•warrant,  voucher  or  pay  check  for  full  amount  of  $500,  United 
States  currency,  and  is  unlawfully  withholding  the  same  from 
your  petitioner  to  secure  the  payment  of  an  alleged  indebted- 
ness, which  the  said  H.  A.  A.  Smith,  as  auditor  of  the  Panama 
Canal,  unlawfully  claims  and  pretends  is  due  from  your  peti- 
tioner unto  the  Panama  Canal  or  to  the  United  States  Govern- 
ment, and  although  your  petitioner  has  made  due  demand,  the 
said  H.  A.  A.  Smith,  auditor  of  the  Panama  Canal,  has  failed 
and  refused,  and  still  fails  and  refuses  to  issue  and  deliver  said 
warrant,  voucher  or  pay  check,  as  is  his  legal  duty  so  to  do. 

Eighth.  That  your  petitioner  is  not  indebted  in  any  sum  or 
sums  whatsoever  unto  the  Panama  Canal  or  unto  the  United 
States  Government,  nor  was  he  so  indebted  in  the  month  of 
December,  1914,  or  in  the  month  of  March,  1916,  and  that 
there  is  no  judgment,  lien  or  lawful  order  whereby  the  said 
w^arrants,  vouchers  or  pay  checks  may  lawfully  be  withheld 
from  your  petitioner  by  the  said  H.  A.  A.  Smith,  auditor  of 
the  Panama  Canal,  to  secure  or  satisfy  any  alleged  or  pre- 
tended indebtedness  due  from  your  petitioner  unto  the  Panama 
Canal  or  the  United  States  Government. 

Ninth.  That  the  action  of  the  said  H,  A.  A.  Smith,  auditor 
of  the  Panama  Canal,  in  withholding  the  issuance  and  delivery 
to  your  petitioner  of  the  warrants,  vouchers  or  pay  checks 
above  mentioned,  tends  to  and  does  deprive  your  petitioner  of 
rights,  privileges  and  immunities  guaranteed  and  preserved  to 
him  under  the  Constitution  of  the  United  States,  under  the  laws 
of  the  United  States,  and  under  the  laws  of  the  Canal  Zone. 


MANDAMUS.  365 

Tenth.  Your  petitioner  further  avers  that  the  action  of  the 
said  H.  A.  A.  Smith,  auditor  of  the  Panama  Canal,  in  failing 
and  refusing-  to  audit,  issue  and  deliver  to  your  petitioner,  the 
warrants,  vouchers  and  pay  checks  for  services  performed  as 
hereinbefore  set  forth,  tends  to  and  does  deprive  your  peti- 
tioner of  his  property  without  due  process  of  law. 

Eleventh.  Your  petitioner  further  alleges  that  there  is  no 
other  plain,  speedy  or  adequate  remedy  by  which  his  rights, 
privileges,  immunities  and  property  may  be  protected  and  pre- 
served, save  that  a  writ  of  mandamus  issue  out  of  this  honor- 
able court,  directed  to  the  said  H.  A.  A.  Smith,  auditor  of  the 
Panama  Canal,  commanding  him,  the  said  H.  A.  A.  Smith, 
auditor  of  the  Panama  Canal,  to  audit,  issue  and  deliver  unto 
your  petitioner,  the  warrants,  vouchers  or  pay  checks  in  the 
sums  of  $170.07  and  $500,  United  States  currency,  respectively, 
in  payment  for  the  services  performed  by  your  petitioner  as 
judge  of  the  district  court  of  the  Canal  Zone,  during  the  months 
of  December,  1914,  and  March,  1916. 

Wherefore,  your  petitioner  being  without  remedy  other  than 
that  sought  herein,  respectfully  prays  that  a  peremptory  writ 
of  mandamus  issue  out  of  this  court  directed  to  the  said  H.  A. 
A.  Smith,  auditor  of  the  Panama  Canal,  and  commanding  him 
as  such  auditor  of  the  Panama  Canal,  to  audit,  draw,  issue  and 
deliver  unto  your  petitioner,  the  warrants,  vouchers  or  pay 
checks  for  the  said  amounts  and  sums  of  $170.07  and  $50Q» 
United  States  currency,  and  to  do  and  perform  such  other  acts 
and  things  as  may  be  necessary  and  proper  in  the  premises. 

And  your  petitioner  further  prays  all  such  other  and  further, 
or  different  relief  in  the  premises  as  may  be  deemed  just  and 
proper  and  as  the  exigencies  of  the  case  may  require. 

A.  B.  and  C.  D., 
Solicitors  for  Wm.  H.  Jackson,  Relator. 

[Verification.'] 


366  SUITS    AT    LAW. 

No.  289. 

Peremptory  Writ  of  Mandamus  to  United  States  Auditor. 

[Caption.] 

To  the  Auditor  of  the  Panama  Canal, 

H.  A.  A.  Smith,  Auditor  of  the  Panama  Canal,  Greeting: 

This  cause  coming  on  to  be  heard  by  the  court,  and  without 
a  jury  by  agreement  of  the  parties,  upon  the  petition  for  writ 
of  mandamus,  the  amended  petition  for  writ  of  mandamus, 
the  answer  of  the  respondent,  the  reply  of  the  relator,  the 
amended  and  supplemental  petition  for  writ  of  mandamus,  and 
the  answer  of  the  respondent  tliereto;  and  after  argument  of 
counsel,  and  the  court  being  fully  advised  in  the  premises,  it  is 
considered,  ordered  and  adjudged  by  the  court,  that  the  re- 
spondent, the  auditor  of  the  Panama  Canal,  has  unlawfully 
withheld  from  the  salary  due  to  the  relator  as  judge  of  the 
district  court  of  the  Canal  Zone  the  follows  sums : 

For  the  month  of  December,  1914 $107.07 

For  the  month  of  January,  1916 66.66 

For  the  month  of  Marcli.  1916 500.00 

For  the  month  of  April,  1916 341.97 

For  the  month  of  May,  1916 53.06 

It  is  further  considered,  ordered  and  adjudged  by  the  court 
that  the  total  sum,  $1,131.76,  above  mentioned,  is  a  part  of  the 
salary  due  to  the  relator  as  judge  of  the  district  court  of  the 
Canal  Zone,  hitherto  appropriated  under  an  Act  of  Congress, 
and  that  the  relator  is  entitled  to  receive  and  be  paid  the  full 
sum  of  the  annual  stipend  appropriated  by  the  Congress  as 
aforesaid,  in  monthly  installments  of  $500,  and  that  it  was  the 
legal  duty  of  the  auditor  of  the  Panama  Canal,  the  respondent 
herein,  to  issue,  audit  and  deliver  to  the  relator  the  warrant, 
voucher  or  pay  check  for  the  payment  of  the  salary  and  the 


MANDAMUS.  367 

above  amount  due  -to  the  relator,  and  to  cause  the  said  warrant, 
voucher  or  pay  check  to  be  paid  by  the  paymaster  of  the  Pan- 
ama Canal  to  tiie  relator,  and  to  do  and  perform  any  and  all 
other  acts  and  things  by  law  required  of  the  said  auditor  of  the 
Panama  Canal  the  respondent  herein,  in  the  performance  of 
this  ministerial  duty,  to  the  end  that  the  said  William  H.  Jack- 
son, judge  of  the  district  court  of  the  Canal  Zone,  the  relator 
Iierein,  may  receive  and  be  paid  the  salary  and  the  above 
amount  to  which  he  is  legally  entitled  by  reason  of  his  office 
and  the  appropriation  made  by  the  Congress  for  the  payment 
of  the  same. 

And  it  is  further  considered,  ordered  and  adjudged  by  the 
court  that  the  funds  appropriated  by  the  Congress  for  the  pay- 
ment of  the  salary  of  the  relator  herein  are  now  in  the  custody 
or  under  the  control  of  the  auditor  of  the  Panama  Canal,  the 
respondent  herein,  and  that  the  said  auditor  of  the  Panama 
Canal,  the  respondent,  is  charged  with  the  duty  of  disbursing 
said  funds  in  the  manner  required  by  law,  and  that  the  said 
auditor  of  the  Panama  Canal,  the  respondent,  has  neglected, 
failed  and  refused  to  perform  his  ministerial  duty  enjoined  by 
law:  and  it  is  further  considered,  ordered  and  adjudged  by  the 
court,  being  of  the  opinion  that  the  relator  is  entitled  to  the 
relief  prayed  for  in  his  petition,  and  therefore  you.  the  said 
auditor  of  the  Panama  Canal,  the  respondent  herein,  are  hereby 
commanded  and  enjoined  that  immediately  upon  the  receipt  of 
this  writ,  and  without  delay,  you  audit,  issue  and  deliver  to  the 
said  William  H.  Jackson,  as  the  judge  of  the  district  court  of 
the  Canal  Zone,  the  relator  herein,  the  warrant,  voucher  or  pay 
check  for  the  sum  of  .$1,131.76.  unlawfully  withheld  by  the 
auditor  of  the  Panama  Canal,  the  respondent  herein,  from  the 
salary  due  to  this  relator,  and  to  cause  the  same  to  be  paid  out 
of  the  funds  appropriated  by  the  Congress  as  aforesaid :  and 
it  is  further  considered,  ordered  and  adjudged  that  you  certify 
perfect  obedience  and  due  compliance  with  this  judgment  and 


368  SUITS   AT    LAW. 

mandate  to  this  court  at  its  session  to  be  held  at  the  hour  of 
10  o'clock  in  the  forenoon  of  Tuesday,  the  18th  day  of  July, 
A.  D.  1916.    And  it  is  further  ordered  that  the  relator  recover 
his  costs  in  this  behalf. 
Herein  fail  not. 

Witness  the  Honorable  Henry  D.,  Clayton,  United  States 
district  judge  for  the  middle  and  northern  districts  of  Ala- 
bama, presiding  in  the  district  court  of  the  Canal  Zone  by 
designation  of  the  President  under  the  Act  of  Congress  ap- 
proved August  24,  1912,  this  11th  day  of  July,  A.  D.  1916. 

(Signed)  H.  D.  Clayton, 

United  States  District  Judge. 


No.  290. 

Marshal's  Return  of  Writ  of  Mandamus. 

[Caption.] 

The  within  writ  of  mandamus  was  served  by  me  at  Balboa 
Heights,  Canal  Zone,  on  July  12,  1916,  on  Ad.  Faure,  the  act- 
ing auditor  of  the  Panama  Canal,  by  delivering  to  him  a  true 
copy  of  the  writ.  H.  A.  A.  Smith,  the  auditor  of  the  Panama 
Canal,  respondent  above  named,  can  not  now  be  served  with 
the  writ  by  leason  of  his  absence  from  the  Canal  Zone. 

(Signed)  Wm.  H.  May, 

Marshal  for  the  District  of  the  Canal  Zone. 

(Signed)  By  John  IT.  Poole, 

Deputy  Marshal. 


CONDEMNATION    PROCEEDINGS.  369 


CONDEMNATION  PROCEEDINGS. 

No.  291. 

Petition  to  Condemn  Land  for  a  Government  Lighthouse. 
To  the  District  Court  of  the  United  States  for  the Dis- 
trict of  . 

In  the  matter  of  the  petition  of  the  United  States  of  America 
for  the  condemnation  of  lots  i  and  2,  block  i   of  C.'s 

first  addition  to  M.  City,  situate  in  the  village  of -, 

county  of  ,  state  of  ,  for  the  use  of  the  peti- 
tioner for  government  lighthouse  purposes. 
The  petitioners,  the  United  States  of  America,  by  J.  H., 

the  attorney  of  the  United  States  for  the district  of , 

respectfully  shows  to  the  court  that  under  the  provisions  of 
sections  4653  to  4680,  inclusive,  of  the  Revised  Statutes  of  the 
United  States  and  the  amendments  thereto,  the  said  lighthouse 
board  is  required  to  perform  all  the  administrative  duties  re- 
lating to  the  construction,  illumination  inspection  and  superin- 
tendence of  lighthouses  and  their  appendages,  and  keeping 
in  good  repair  of  the  said  lighthouses,  under  the  superin- 
tendence of  the  secretary  of  the  treasury  of  the  United  States, 
the  ex-officio  president  of  said  board. 

Your  petitioners  further  show  that  negotiations  were  had 

in  the  year  nineteen  hundred  and  under  the  direction 

and  with  the  approval  of  the  said  lighthouse  board  to  acquire 
by  purchase  the  land  hereinafter  described,  for  the  purpose 
and  reasons  hereinafter  mentioned,  and  that  the  said  negotia- 
tions proceeded  to  the  execution  of  a  deed  of  said  land  to  the 
United-  States  of  America,  but  after  an  examination  by  the 
then  attorney  of  the  United  States  for  the  district  of 


370  SUITS    AT    LAW. 

,  of  the  said  deed  and  the  papers  relating  to  the  title  to  the 


said  land,  the  same  were  not  approved,  for  the  reason  that  the 

village  of  claimed  the  said  lands  as  a  park  under  the 

dedication  made  to  said  village  by  one  E.  C.  in  the  year 
eighteen  hundred  and  seventy,  and  your  petitioner  has  been 
unable  to  obtain  the  title  to  said  land  by  purchase. 

Your  petitioners  further  show  that  the  land  on  which  the 

Old  Point  light  station  now  is,  situate  in  the  county  of , 

in  the division  of  the  district  of  ,  is  entirely 

inadequate  for  the  purpose  of  the  said  lighthouse,  and  that 
the  said  secretary  of  the  treasury  has  been  authorized  to 
procure  real  estate  for  public  use  as  an  addition  to  the  said 
land  now  occupied  by  the  Old  Point  light  station  aforesaid; 
that  in  the  opinion  of  the  said  secretary  of  the  treasury  it  is 
necessary  and  advantageous  to  the  government  that  the  land 
hereinafter  described  be  immediately  acquired  for  your  peti- 
tioners, the  United  States  of  America,  by  condemnation  under 
judicial  proceedings,  to  be  used  with  the  land  now  occupied 
by  the  lighthouse  aforesaid  and  to  be  used  for  lighthouse 
purposes  in  connection  with  and  as  a  part  thereof;  that  the 
said  secretary  of  the  treasury  has  made  application  to  the 
attorney-general  of  the  United  States  under  and  in  accordance 
with  the  provisions  of  the  Act  of  Congress  of  August  i, 
1888,  entitled,  "  An  Act  to  authorize  condemnation  of  land 
for  sites  of  public  buildings,  and  for  other  purposes,"  to  cause 
proceedings  to  be  commenced  for  the  condemnation  of  the 
land  hereinafter  described,  and  that  the  said  attorney-general 
has  directed  the  said  J.  N.,  United  States  attorney  aforesaid, 
to  commence  proceedings  for  the  condemnation  of  said  land 
hereinafter  described,  for  the  purpose  aforesaid. 

Your  petitioners  further  show  that  the  land  it  desires  to 
acquire  for  the  purposes  aforesaid  is  described  as  follows, 
to  wit:     [Here  describe  the  property  to  be  condemned.'] 

Your  petitioners  further  show  that  said  land  is  now  owned 
by  one  M.  M.,  and  that  the  village  of ,  a  municipal  cor- 


CONDEMNATION    PROCEEDINGS.  371 

poration  in  the  county  oi ,  state  of ,  claims  to  have 

an  interest  therein  by  virtue  of  a  conveyance  made  by  one  E. 
C.  in  the  year  eighteen  hundred  and  seventy  dedicating  the 
said  land  to  pubHc  uses  as  a  park,  and  that  the  foregoing  sets 
forth  the  condition  of  the  title  to  said  land  so  far  as  the  same 
can  be  ascertained  from  the  public  records  or  can  be  ascer- 
tained from  actual  occupants,  and  enquiries  made  by  officials 
of  the  petitioner. 

Your  petitioners  further  show  that  this  petition  is  made 
and  presented  for  the  purpose  of  acquiring  the  title  and  own- 
ership of  the  lands  above  described  to  and  for  the  use  of  your 
petitioners,  the  United  States  of  America,  for  lighthouse  pur- 
poses as  aforesaid,  by  condemnation  under  the  process  and 
proceedings  of  this  court,  as  provided  in  the  Act  of  Congress 
of  Aug^ist  I,  1888,  entitled  "An  Act  to  authorize  the  con- 
demnation of  land  for  sites  of  public  buildings,  and  for  other 
purposes,"  and  that  an  appropriation  was  made  in  the  Sundry 
Civil  Appropriation  Act  of  March  3,  1891,  for  lighthouse 
station  at  the  site  aforesaid,  and  that  sufficient  of  such  funds 
are  now  available  to  pay  a  just  and  due  compensation  for 
the  lands  hereinbefore  described  and  which  your  petitioner 
desires  to  acquire  by  this  proceeding. 

And  your  petitioners  further  show  that  the  said  secretary 
of  treasury  of  the  United  States  has  in  all  respects  complied 
with  the  Acts  of  Congress  hereinbefore  referred  to,  and  with 
all  other  provisions  of  law  in  regard  to  the  acquisition  and 
condemnation  by  the  United  States  of  the  land  hereinbefore 
described  for  public  uses  aforesaid. 

Your  petitioner  therefore  prays  that  said  lands  may  be 
condemned  under  the  process  and  proceedings  of  this  court 
for  the  public  uses  and  purposes  aforesaid,  and  that  the  title 
thereto  may  be  confirmed  in  and  to  your  petitioner,  the 
United  States  of  America,  upon  payment  by  your  petitioners 
of  a  just  and  due  compensation  to  the  owner  or  owners  there- 
of, and  that  the  said   M.  M.  and  the  said  village  of  1 


372 


SUITS  AT   LAW. 


and  all  other  persons  or  corporations,  municipal  or  otherwise 
interested  in  said  land  or  any  part  thereof,  may  be  summoned 
to  appear  before  this  honorable  court  and  answer  this  petition 
and  show  cause,  if  any  they  have,  against  the  same. 

J.  H., 
Attorney  of  the  United  States  for  the 

district  of ,  who  appears  for 

the  petitioner  by  direction  of  the  At- 
torney-General of  the  United  States. 


No.  292. 

Petition  to   Condemn  Land  by  United  States  for   a  Public 

Building. 

[Caption.^ 

Now  comes  the  United  States  of  America  by  J.  H.,  United 

States  attorney  for  the district  of ,  and  represents 

that,  by  an  Act  of  Congress  of  the  United  States,  approved 
March  3,  1899,  entitled  "An  Act  to  provide  for  a  public 
building  at  Cleveland,  Ohio,"  the  secretary  of  the  treasury 
of  the  United  States  was  authorized  and  directed  to  purchase, 
acquire  by  condemnation,  or  otherwise,  the  block  of  land 
located  in  the  city  of  Cleveland,  which  is  bounded  by  Rock- 
well street  on  the  north,  by  Wood  street  on  the  east,  by 
Superior  street  on  the  south,  and  on  the  west  by  land  now 
owned  by  the  United  States,  upon  which  the  postoffice  or 
government  building  is  located,  as  and  for  a  site  for  a  new 
United  States  public  building,  including  fire-proof  vaults, 
heating  and  ventilating  apparatus,  elevators  and  approaches, 
for  the  use  and  accommodation  of  the  United  States  post- 
office,  custom  house,  internal  revenue  office,  United  States 
Circuit  and  District  Courts,  signal  service,  weather  bureau, 
pension  office  and  other  government  offices,  in  the  city  of 
Cleveland  and  state  of  Ohio,  provided,  that  the  secretary  of  the 


CONDEMNATION    PROCEEDINGS. 


373 


treasury  can  purchase  the  said  property  at  a  reasonable  price. 

Plaintiff  further  represents  that,  in  the  opinion  of  the  said 
secretary  of  the  treasury  of  the  United  States,  it  has  become 
necessary  and  advantageous  to  the  government  to  acquire  the 
said  premises  by  condemnation,  under  judicial  process;  the 
said  property  to  be  used  as  a  site  upon  which  to  erect  a  new 
government  building,  as  set  forth  in  the  Act  of  March  3, 
1899. 

That  on  the  17th  day  of  August,  1899,  the  secretary  of 
the  treasury  of  the  United  States  made  application  to  the 
attorney-general  of  the  United  States  to  commence  proceed- 
ings for  the  condemnation  of  the  said  lands;  and,  on  the  21st 
day  of  August,  1899,  the  attorney-general  of  the  United 
States  instructed  the  United  States  attorney  for  the  northern 
district  of  Ohio  to  institute  proceedings  for  the  condemnation 
of  the  lands  described  in  the  Act  of  March  3,  1899,  a  copy  of 
which  letter  is  hereto  attached,  marked  Exhibit  "  A  " ;  and 
these  proceedings  are  brought  under  instructions  from  the 
department  of  justice  of  the  United  States,  and  under  the  Act 
of  Congress  approved  August  i,  1888,  entitled  "  An  Act  to 
authorize  condemnation  of  land  for  sites  of  public  buildings, 
and  for  other  purposes." 

Plaintiff  says  that  said  land  to  be  appropriated  by  the 
United  States  for  the  purposes  aforesaid,  is  more  particu- 
larly described  as  follows: 

Parcel  No.  i :  Situated  in  the  city  of  Cleveland,  county  of 
Cuyahoga  and  state  of  Ohio,  and  being  a  part  of  original  two- 
acre  lot  No.  64,  and  bounded  on  the  north  by  Rockwell  street, 
on  the  east  by  Wood  street,  on  the  south  by  Superior  street, 
and  on  the  west  by  a  street  called  Case  Place,  and  being  the 
property  deeded  to  the  Cleveland  Library  Association  (now 
Case  Library)  by  Leonard  Case,  July  i,  1876. 

Parcel  No.  2:  Situated  in  the  city  of  Cleveland,  county  of 
Cuyahoga  and  state  of  Ohio,  and  known  as  a  part  of  original 
two-acre  lots  Nos.  63  and  64,  and  known  as  Case  place,  so- 


374 


SUITS   AT   LAW. 


called,  bounded  on  the  north  by  Rockwell  street,  on  the  east 
by  the  property  above  described,  on  the  south  by  Superior 
street,  and  on  the  west  by  land  deeded  to  the  United  States 
by  Leonard  Case,   May   i8,   1859. 

A  plat  of  said  parcels  of  land  is  attached  to  this  petition, 
marked  Exhibit  "  B,"  and  made  a  part  hereof. 

Plaintiff  further  says  that  the  said  first  parcel  has  erected 
thereon  a  brick  and  stone  structure,  called  the  Case  Library 
building,  which  building  is  owned  by  the  Case  library;  and 
that  the  defendants,  William  Bingham,  Henry  C.  Ranney, 
Samuel  E.  Williamson,  James  Barnett  and  Charles  W.  Bing- 
ham, are  trustees  of  the  said  Case  library. 

That  the  defendants,  The  Citizens'  Savings  &  Loan  Asso- 
ciation, Walton  Bros.,  C.  H.  Estinghaisen,  Francis  J.  Wing, 
C.  B.  Squire,  The  Savings  Building  &  Loan  Company,  James 
J.  Tracy,  John  Coon  and  Levi  T.  Scofield,  have,  or  claim  to 
have,  some  right,  title  or  interest  as  lessees  of  portions  of  the 
said  building,  the  exact  nature  of  which  is  unknown  to  this 
plaintiff. 

That  the  defendants,  [naming  them]  are,  so  far  as  known 
to  this  plaintiff,  the  heirs  at  law  of  Leonard  Case,  and  have, 
or  claim  to  have,  some  right,  title  or  interest  in  and  to  the 
land  above  described,  the  exact  nature  of  which  is  unknown 
to  this  plaintiff. 

That  the  defendant,  the  city  of  Cleveland,  has,  or  claims 
to  have,  some  right,  title  or  interest  in  and  to  the  property 
described  as  said  second  parcel,  the  same  having  been  deeded 
to  the  city  as  and  for  a  street. 

Wherefore  the  said  plaintiff,  the  United  States  of  America, 
prays  the  court  that  a  jury  may  be  empaneled  for  an  inquiry 
and  assessment  of  the  compensation  to  be  paid  by  the  said 
United  States  of  America  for  the  said  property,  as  described 
and  set  forth  in  this  petition,  and  that,  upon  payment  intc 
court,  or  to  the  proper  owners,  defendants  herein,  by  the 
United  States,  of  an  amount  of  compensation  equal  to  the 


CONDEMNATION    PROCEEDINGS.  375 

sum  SO  assessed  by  the  jury  as  the  value  of  the  land  above  de- 
scribed, with  the  buildings  thereon,  that  possession  may  be 
awarded  it  by  this  court,  according  to  law;  and  that  the  ab- 
solute title  to  the  said  property  by,  and  thereby  vest,  in  the 
said  United  States,  for  the  purposes  aforesaid,  and  that  the 
court  will  divide  the  sum  so  paid,  and  order  its  distribution 
among  the  several  claimants,  as  to  their  respective  rights  here- 
in ;  and  for  such  other  and  further  orders  as  may  be  proper  in 
proceedings  for  the  condemnation  of  private  property  to  the 
public  use  aforesaid. 

And  your  petitioner  further  prays  that  process  be  duly  is- 
sued by  this  honorable  court  requiring  the  said  parties  de- 
fendant to  appear  before  this  court  on  a  day  set  by  a  judge 
thereof  for  the  hearing  of  this  petition,  then  and  there  to 
make  answer  to  this  petition,  and  to  abide  the  further  order 
and  judgment  of  the  court  in  the  premises. 

J.  H., 

United  States  Attorney,  Northern  District  of  Ohio. 
The  United  States  of  America,  Northern  District  of  Ohio,  ss. 

J.  H.,  being  duly  sworn,  says  that  he  is  the  attorney  of 
the  United  States  for  the, Northern  District  of  Ohio,  duly  au- 
thorized in  the  premises;  that  the  facts  set  forth  in  said  peti- 
tion are  within  the  personal  knowledge  of  aflfiant;  and  that 
the  facts  and  allegations  therein  stated  are  true,  as  he  verily 
believes. 

J.  H. 
Sworn  to  before  me  by  the  said  J.  H.,  and  by  him  subscribed 

in  my  presence,  this day  of  ,  A.  D.  

B.  R., 
Clerk  U.   S.   Circuit  Court. 

(1)  Taken  from  the  record  in  Avery  v.  U.  S.  104  Fed.  711,  44  C 
C.  A.  161. 

As  to  the  right  to  appropriate  property  for  public  uses  subject  to  the 
constitutional  limitations  see  Kohl  v.  U.  S.  91  U.  S.  367;  U.  S.  v.  Jones, 
109  U.  S.  513;  Shoemaker  v.  U.  S.,  147  U.  S.  282;  U.  S.  v.  Gettysburg 


376  SUITS   AT    LAW. 

Elec.  Ry.  Co.,  160  U.  S.  668;  Cooley's  Const.  Limitation,  526;  U.  S. 
Const.,  Art.  5,  last  clause. 

The  proceedings  are  on  the  common  law  side  of  the  court,  and 
conform  as  near  as  may  be  to  the  practice,  pleadings  and  forms  of 
proceedings  in  the  state  court.  Act  of  August  1,  1882,  21  Stat.  L.  357, 
1  Supp.  601.  In  re  Secretary  of  the  Treasury,  45  Fed.  397.  Same 
case  on  appeal  sub  nom.  Carlisle  v.  Cooper,  64  Fed.  472,  12  C.  C. 
A.  235. 

The  proceedings  are  ordinarily  had  in  the  circuit  court  but  the 
district  court  has  jurisdiction  to  condemn  lands  for  fortifications. 
Act  of  August  18,  1890,  26  Stat.  L.  316;  U.  S.  v.  Engeman,  45  Fed. 
546. 

The  petition  should  be  in  the  name  of  the  United  States. 

See  In  re  Rugheimer,  36  Fed.  375,  and  by  the  direction  of  the 
attorney  general  upon  the  application  of  the  secretary  of  the  treasury. 
U.  S.  V.  Gettysburg  Elec.  Ry.  Co.,  160  U.  S.  668. 

Condemnation  proceedings  have  been  provided  in  rather  recent 
times  for  the  acquisition  of  various  kinds  of  property  deemed  neces- 
sary for  government  purposes,  military,  naval,  or  other,  such  as: 

For  aviation  purposes — Acts  of  Aug.  29,  1916,  39  Stat.  L.  622;  June 
15,  1917,  40  Stat.  L.  182;  July  27,  1917,  40  Stat.  L.  247. 

For  quarantine  stations— Act  of  June  19,  1906,  36  Stat.  L.  299. 

For  military  purposes— Acts  of  July  2,  1917,  40  Stat.  L.  241;  April 
11,  1918,  chap.  51,  40  Stat.  L.  — ;  July  9,  1918,  chap.  143,  XV,  40  Stat. 

L  — . 

Aircraft  patents— Act  May  4,  1917,  39  Stat.  L.  1169. 
Dams— Acts  of  June  21,   1906,   34   Stat.   L.   386;  June  23,   1910,   36 
Stat.  L.  595. 


No.  293. 

Petition  to  Condemn  Land  under  a  State  Statute  of  Eminent 

Domain  (1). 

The  District  Court  of  the  United  States,  District  of  Idaho. 

Postal  Telegraph-Cable  Company  of 
Idaho  (a  Corporation),  Plaintiff, 
vs. 
Oregon  Short  Line  Railroad  Company 

(a  Corporation),  Defendant. 
And  now  Comes  the  said  plaintiff,  leave  of  court  first  having 
been  had  and  obtained,  and  files  this  complaint  in  the  consoli- 


CONDEMNATION    PROCEEDINGS.  377 

dated  action  of  the  Postal  Telegraph-Cable  Company  of  Idaho 
(a  corporation), plaintiff, z;j. Oregon  Short  Line  Railroad  Com- 
pany (a  corporation),  defendant,  removed  to  this  court  from 
the  Fifth  Judicial  District  Court  of  the  county  of  Oneida,  state 
of  Idaho,  and  a  like  entitled  cause  removed  to  this  court  from 
the  Fifth  Judicial  District  Court  of  the  county  of  Bannock,  in 
ike  state  of  Idaho ;  and  a  like  entitled  cause  removed  to  this 
coMrt  from  the  Fifth  Judicial  District  Court  of  the  county  of 
Bingham,  in  the  state  of  Idaho;  and  a  like  entitled  cause  re- 
moved to  this  court  from  the  Fifth  Judicial  Court  of  the  county 
of  Fremont,  in  the  state  of  Idaho,  and  alleges : 

First.  That  the  Postal  Telegraph-Cable  Company,  plaintiff 
herein,  is  and  at  all  times  herein  mentioned  was  a- corporation 
duly  incorporated  under  the  laws  of  the  state  of  Idaho,  and 
doing  business  in  the  state  of  Idaho. 

Second.  That  the  said  defendant,  the  Oregon  Short  Line 
Railroad  Company,  is  and  at  all  times  herein  mentioned  was  a 
corporation  incorporated  under  and  pursuant  to  the  laws  of  the 
state  of  Utah,  and  doing  business  in  the  state  of  Idaho. 

Third.  That  said  defendant  railroad  company  is  the  owner 
of  its  right  of  way,  a  portion  of  which  is  sought  by  this  pro- 
ceeding to  be  condemned  for  the  use  of  plaintiff  for  the  purpose 
of  constructing,  mrintaining  and  operating  a  telegraph  line 
thereon. 

Fourth.  That  plaintiff  claims  the  power  to  exercise  the 
right  of  eminent  domain  in  this  proceeding  by  virtue  of  title  7, 
of  special  proceedings  of  a  civil  nature  of  the  revised  statutes 
of  Idaho  of  1887. 

Fifth.  Plaintiff  desires  the  right  to  construct,  maintain  and 
operate  a  telegraph  line  on  and  upon  the  right  of  way  of  de- 
fendant from  a  point  on  the  state  line  between  the  states  of 
tltah  and  Idaho,  called  Cannon,  running  thence  north  through 
the  counties  of  Oneida,  Bannock,  Bingham  and  Fremont,  in 
the  state  of  Idaho,  to  a  point  on  the  state  line  between  the  state 


378  SUITS    AT    LAW. 

of  Montana  and  the  state  of  Idaho,  known  and  called  Monida 
Station,  on  the  railroad  of  said  defendant,  a  distance  of  about 
two  hundred  miles. 

Sixth.  Plaintiff  proposes  to'  construct  and  will  construct  a 
telegraph  line  as  follows : 

By  the  erection  of  poles  thirty  feet  in  length,  planted  firmly 
in  the  ground,  at  a  depth  of  not  less  than  five  feet  and  thirty 
feet  from  the  outer  edge  of  the  railroad  bed,  at  or  near  the  top 
of  which  will  be  fastened  across  arms  eight  feet  in  length,  to 
Avhich  will  be  attached  insulators,  and  upon  which  will  be 
stretched,  from  pole  to  pole,  a  sufficient  number  of  wires  to 
transmit  speedily  and  promptly  all  business  entrusted  to  it  for 
transmission- by  the  government  and  the  public;  and  where  it 
becomes  necessary  to  cross  the  track  of  said  railroad,  the  poles 
will  be  of  such  height  above  the  ground,  and  the  wires  will  be 
strung  so  high  as  to  prevent  any  interference  with  the  opera- 
tion or  conduct  of  defendant's  business,  and  so  as  not  to  en- 
danger the  life  or  limb  of  its  employes.  And  if  at  any  time 
defendant  needs  any  portion  of  its  right  of  way  where  said 
poles  and  line  are  constructed  for  its  purposes,  then,  in  such 
event,  plaintiff  will,  upon  reasonable  notice,  at  its  own  expense, 
remove  the  same  to  such  other  point  or  points  on  said  right  of 
way  as  may  be  designated  by  defendant.  The  said  poles  will 
be  erected  at  a  distance  of  about  one  hundred  and  sixty-seven 
feet  from  each  other  on  said  right  of  way,  as  aforesaid,  each 
of  which  poles  will  be  one  foot  in  diameter  at  the  base  and 
occupy  only  one  square  foot  of  ground. 

Seventh.  Defendant's  railroad  bed  is  located  at  or  near  the 
center  of  its  right  of  way.  which  is  not  less  than  one  hundred 
feet  in  width,  and  the  track  of  said  railroad  is  four  feet,  eight 
and  one-half  inch  gauge  along  and  upon  the  center  of  said 
railroad  bed. 

Eighth.  Plaintiff  further  alleges  tliat  the  location  and  gen- 
eral route  and  termini  of  said  telegraph  line  are  as  described 


CONDEMNATION     PROCEEDINGS.  379 

aforesaid,  and  as  outlined  on  a  certain  map  attaclied  liereto 
and  marked  Exhibit  "A,"  and  made  a  part  of  this  complaint, 
the  said  route  of  said  telegraph  line,  as  outlined  on  said  map, 
being  designated  thereon  by  heavy  blue  lines. 

Ninth.  The  only  land  sought  to  be  occupied  will  be  one  cir- 
cular foot,  five  feet  deep,  in  which  the  poles  aforesaid  will  be 
planted,  and  does  not  include  the  whole,  but  only  a  very  small 
fractional  part  of  the  entire  right  of  way  of  said  railroad  com- 
pany. The  use  to  which  this  will  be  applied  is  a  public  use  and 
is  authorized  by  law,  and  that  the  taking  by  this  proceeding  is 
necessary  to  such  use,  and  that  the  public  use  to  which  it  is  to 
be  applied  is  a  more  necessary  public  use  than  that  to  which 
it  has  already  been  appropriated. 

Tenth.  Plaintiff  does  not  by  this  proceeding  seek  to  destroy 
or  curtail  or  in  any  way  interfere  with  the  franchise  and  rights 
of  the  defendant  company.  That  so  much  of  the  right  of  way 
of  the  defendant  company  which  is  sought  to  be  appropriated 
to  the  use  of  plaintiff  has  not  been  appropriated,  and  is  not 
likely  in  the  future  to  be  needed  by  the  said  defendant  for  rail- 
road purposes,  and  is  not  reasonably  essential  to  such  use,  and 
is  liable  under  the  law  to  condemnation  proceedings  for  a  dif- 
ferent public  use,  as  is  sought  for  plaintiff  by  this  proceeding. 

Eleventh.  That  the  taking  sought  in  this  proceeding  will  not 
destroy  or  curtail  any  franchises  or  any  property  essential  to 
the  full  and  complete  enjoyment  of  said  defendant  company. 

Twelfth.  That  such  portion  of  the  right  of  way  of  the  de- 
fendant sought  by  plaintiff  for  the  purpose  aforesaid  is  not 
used,  and  is  not  essential  to  its  enjoyment  of  its  franchises  and 
property,  and  the  appropriation  sought  by  plaintiff  in  this  pro- 
ceeding is  for  a  more  necessary  public  use  than  that  to  which 
it  has  already  been  appropriated. 

Thirteenth.  Plaintiff  will  not  attach  its  wires  or  fixtures  of 
any  kind  to  any  of  the  bridges  or  trestles,  buildings  or  struc- 
tures of  the  defendant  railroad  company,  and  will  not  erect 
any  of  its  poleswithinany  embankments  of  the  defendant  com- 


380  SUITS    AT    LAW. 

pany,  but  as  hereinbefore  stated,  will  occupy  only  such  portion 
of  the  right  of  way  aforesaid  as  it  is  not  necessary  for  the  use 
of,  or  is  being  used  by  the  said  defendant  company,  and  if  at 
any  time  the  said  defendant  company  needs  any  portion  of  its 
right  of  way  where  the  poles  and  lines  of  the  plaintifif  are  upon 
said  right  of  way,  for  the  purposes  of  constructing  an  additional 
railroad  track,  sidetrack,  switches,  turnouts,  turn-tables,  water- 
tanks,  warehouses,  or  any  other  use  for  railroad  purposes,  then 
in  such  event  plaintiff  will,  upon  reasonable  notice,  at  its  own 
expense,  remove  its  poles  and  wires  to  such  other  part  or  parts 
of  said  right  of  way  as  may  be  designated  by  the  defendant 
company,  so  as  in  no  way  to  interfere  with  the  use  of  any  por- 
tion of  the  right  of  way  of  defendant  for  the  purposes  for  which 
it  has  already  been  appropriated.  That  the  construction,  main- 
tenance and  operation  of  its  telegraph  line  upon  the  right  of 
way  of  the  defendant  railroad  company  as  appropriated  will  be 
of  no  damage  whatever  to  the  said  railroad  company,  and  will 
not  diminish  in  value  the  said  right  of  way  for  railroad  pur- 
poses. And  the  plaintiff's  telegraph  line  will  not  come  in  con- 
tact or  interfere  with  any  telegraph  line  already  constructed  on 
said  right  of  way,  and  will  be  constructed  on  the  opposite  side 
of  the  roadbed  from  that  of  the  telegraph  now  on  said  right 
of  way. 

Fourteenth.  Plaintiff  further  alleges  that  it  has  duly  ac- 
cepted the  provisions  of  an  act  of  Congress,  approved  July  24, 
1866,  entitled,  "An  act  to  aid  in  the  construction  of  telegraph 
lines,  and  to  secure  to  the  government  the  use  of  the  same  for 
postal,  military  and  other  purposes."  Agreeing  thereby  that 
telegrams  between  the  several  departments  of  the  government 
and  their  officers  and  agents  shall  at  all  times  have  priority  over 
all  other  business  in  their  transmission  over  the  lines  of  said 
company,  and  that  the  charges  for  such  telegrams  shall  not  ex- 
ceed the  rates  annually  fixed  by  the  postmaster-general. 

Fifteenth.  Plaintiff  alleges  that  it  has  made  a  bona  fide  effort 
to  agree  with  the  defendant  railroad  company  upon  a  just  com- 


CONDEMNATION    PROCEEDINGS.  381 

pensation,  that  should  and  ought  to  be  paid  it,  for  the  right  and 
privilege  sought  in  this  proceeding,  but  has  failed  to  make  such 
agreement  with  said  defendant  company,  said  defendant  de- 
clining and  refusing  to  negotiate  with  plaintiff  for  such  right 
and  privilege. 

Sixteenth.  Plaintiff  further  alleges  that  all  the  preliminary 
steps  required  by  law  have  been  taken  to  entitle  plaintiff  to 
institute  these  proceedings. 

Wherefore  plaintiff'  prays  judgment  as  follow^s :  That  it  may 
be  adjudged  by  the  court  that  the  use  to  which  the  property 
herein  sought  to  be  condemned  is  a  use  authorized  by  law ;  that 
the  public  use  requires  the  condemnation  of  the  real  property 
herein  described;  that  the  public  use  to  which  said  real  estate 
is  to  be  applied  is  more  a  necessary  public  use  than  that  to 
which  it  is  already  appropriated ;  that  the  plaintiff  is  entitled 
to  take  and  hold  said  property  for  the  public  use  specified  upon 
making  compensation  therefor,  and  that  the  court  hear  such 
legal  testimony  as  may  be  offered  by  the  parties  and  ascertain 
such  just  compensation  as  should  be  paid  by  the  plaintiff  to 
said  defendant  for  such  damages  as  defendant  shall  sustain  by 
the  construction  of  said  telegraph  line,  and  that  plaintiff  have 
such  further  and  other  relief  as  to  the  court  shall  seem  just.  (2) 

O.  W.,  Attorney, 

Salt  Lake  City,  Utah. 
J.  R.,  General  Counsel. 

State  of  Utah,  County  of  Salt  Lake,  ss. 

O.  \V.,  being  duly  sworn,  deposes  and  says:  That  he  has 
heard  read  the  foregoing  complaint  and  knows  the  contents 
thereof;  that  he  is  one  of  the  attorneys  of  plaintiff  in  the  above 
entitled  cause,  and  makes  this  affidavit  for  and  on  plaintiff's 
behalf.  He  further  says  that  the  facts  stated  in  the  foregoing 
complaint  are  true  according  to  his  best  information,  knowl- 
edge and  belief.  O.  W. 

Subscribed  and  sworn  to  before  me  this day  of , 

A.  D. .  D.  W., 

Notary  Public. 


382  SUITS    AT    LAW. 

(1)  Taken  from  record  in  Oregon  Short  Line  R.  R.  Co.  v.  Postal 
Telegraph  Cable  Co.  of  Idaho,  111   Fed.  842. 

(2)  See  also  Colorado  E.  Ry.  Co.  v.  Union  Pacific  Ry.  Co.,  41  Fed. 
293;  affirmed  in  94  Fed.  312,  and  see  Boom  Co.  v.  Patterson, 
98  U.  S.  403. 

Where  a  railway  company  operates  a  telegraph  line  it  has  exclusive 
right  to  its  right  of  way  for  that  purpose  so  far  as  necessary,  but  a 
telegraph  company  has  the  right  to  condemn  the  unused  portion  for 
its  own  lines,  and  in  such  case  the  damages  are  those  sustained  by 
the  railway  in  the  operation  of  the  railway,  the  value  of  the  use 
taken  for  telegraph  and  railway  use,  and  evidence  to  show  the  rental 
value  is  admissible  on  the  question  of  damages.  N.  P.  Ry.  Co.  v. 
W.  U.  Tel.  Co.,  230  Fed.  347,  144  C.  C.  A.  489. 

Condemnation  proceedings  are  essentially  in  rem,  and  the  owner 
is  entitled  only  to  notice  of  the  proceeding  to  condemn,  not  of  the 
subsequent  steps.  In  re  Condemnation  Suits  by  the  United  States, 
234  Fed.  443.  This  case  also  lays  down  some  rules  respecting  notice 
in  general. 

Burden  of  showing  value  of  easement  of  telegraph  company  over 
railway  right  of  way  and  absence  of  damages  to  remaining  prop- 
erty is  determined  by  the  state  law.  Postal,  etc.,  Co.  v.  N.  P.  R.  Co., 
211  Fed.  824,  128  C.  C.  A.  350. 

Court  of  equity  has  no  jurisdiction  to  condemn.  W.  U.  Tel.  Co.  v. 
Nashville,  C.   &  St.   L.  R.   Co.,  250  Fed.  207. 

For  discussion  of  questions  arising  in  a  case  where  a  telegraph 
company  is  attempting  to  condemn  an  easement  over  a  railway 
right  of  way  where  the  railway  company  is  itself  desirous  of  oper- 
ating its  own  telegraph  line,  see  L.  &  N.  Ry.  Co.  v.  W.  U.  Tel.  Co., 
249  Fed.  385,  —  C.  C.  A.  — . 

As  to  condemnation  for  temporary  use  as  a  United  States  military 
camp  under  the  act  of  July  2,  1917,  some  rules  governing  compensation 
are  laid  down  in  In  re  Condemnation  of  Lands,  etc.,  250  Fed.  314. 

Generally  as  to  right  of  a  private  corporation  to  condemn,  see 
Walker  v.  Shasta  Power  Co.,  160  Fed.  856,  87  C.  C.  A.  660. 


No.  293a. 

Petition  for  Condemnation  of  Easement  over  Railroad  Prop- 
erty where  Already  Occupied  under  a  Contract  About 
to  Expire. 

[Caption.] 

The  petition  of  the  Western  Union  Telegraph  Company,  a 
corporation  organized  and  existing  under  the  laws  of  the  state 
of  New  York,  domiciled  in  the  city  of  New  York,  in  said  state, 


CONDEMXATIOX    PROCEEDINGS.  383 

and  doing  business  in  the  state  of  Louisiana,  having  its  prin- 
cipal office  in  the  said  state  in  the  city  of  New  Orleans,  respect- 
fully represents : 

That  i^etitioner  is  a  corporation  organized  and  existing  un- 
der the  laws  of  the  state  of  New  York,  for  the  purpose  of  trans- 
mitting intelligence  by  magnetic  telegraph,  and  has  constructed 
and  maintained,  and  is  constructing  and  maintaining  telegraph 
lines  through  the  various  states  of  the  United  States  and  in  the 
state  of  Louisiana  necessary  to  transmit  intelligence  along  the 
liighways  and  over  the  waters  and  tlirough  the  parishes  of  the 
state  of  Louisiana,  and  more  particularly  the  parishes  of  Or- 
leans and  St.  Tammany. 

The  petitioner  is  duly  qualified  by  law  to  institute  these  pro- 
ceedings, and  has  filed  in  the  office  of  the  secretary  of  state  of 
Louisiana  all  of  the  documents  and  instruments  required  by 
law  for  the  purpose  of  authorizing  it  to  do  business  in  the  state 
of  Louisiana,  and  has  named  and  appointed  T.  P.  Cummings 
as  its  agent  for  the  service  of  process  in  the  state  of  Louisiana. 

That  the  Louisville  &  Nashville  Railroad  Company  is  a  cor- 
poration organized  and  existing  under  the  laws  of  the  state  of 
Kentucky,  domiciled  in  the  city  of  Louisville,  in  the  said  state, 
and  doing  business  in  the  said  state  in  the  city  of  New  Orleans, 
and  has  named  Charles  Marshall  and  A.  J.  Jacobs  its  agent , 
in  said  state  for  the  service  of  process. 

That  the  said  Louisville  &  Nashville  Railroad  Company  is 
engaged  in  and  is  carrying  on  the  business  of  a  common  carrier 
by  railroad  of  passengers  and  freight  through  various  states 
and  in  and  through  the  state  of  Louisiana,  and  more  particu- 
larly in  and  through  the  parishes  of  Orleans  and  St.  Tammany 
in  said  state. 

That  the  said  defendant,  the  Louisville  &  Nashville  Railroad 
Company,  in  the  operation  of  its  railroad,  has  acquired  and 
owns  a  strip  of  ground  or  right  of  way  over  which  it  operates 
its  said  railroad,  varying  in  width  from  sixty  to  one  hundred 
feet,  beginning  at  a  point  in  the  city  of  New  Orleans,  at  the 


384  SUITS   AT    LAW. 

intersection  of  the  property  lines  at  the  corner  of  Elysian  Fields 
street  and  Laforce  street  (now  North  Tonti  street),  in  square 
No.  1210,  and  running  thence  in  an  easterly  direction  and  form- 
ing a  continuous  strip  of  ground  through  the  parishes  of  Or- 
leans and  St.  Tammany  to  the  thread  of  the  steam  [stream] 
known  as  Pearl  River,  the  dividing  line  between  the  states  of 
Louisiana  and  Mississippi,  a  distance  of  35.38  miles. 

That  the  strip  of  ground  or  right  of  way  28.93  miles  in 
length  lines  in  the  parish  of  Orleans  and  6.45  miles  lines  in  the 
parish  of  St.  Tammany  in  this  state. 

That  on  said  strip  of  ground  or  right  of  way  said  defendant 
has  constructed  and  operates  a  railroad,  and  at  various  places 
thereon  has  constructed  necessary  appurtenances,  consisting  of 
sidetracks,  station  houses,  depots  and  section  houses,  and  where 
the  line  of  said  railroad  crosses  navigable  streams  or  bodies  of 
water,  bridges  have  been  constructed,  notably  where  said  rail- 
road crosses  the  streams  known  as  the  "Little  Rigolets"  and 
"Rigolets." 

That  the  locations  of  said  right  of  way  and  of  the  said  rail- 
road constructed  thereon,  and  of  the  improvements,  structures 
and  bridges  thereon,  are  fully  shown  on  the  plat  or  plan  filed 
herewith  as  a  part  hereof,  and  marked  for  identification  "Ex- 
hibit A." 

That  may  [many]  years  ago,  with  the  consent  of  the  defend- 
ant, the  plaintiff  constructed  and  has  ever  since  maintained, 
and  now  maintains,  a  line  of  telegraph  poles  and  wires  and 
other  appurtenances  thereto  over  and  along  said  strip  of  ground 
or  right  of  way,  and  over  and  along  the  bridges  of  the  said 
defendant  crossing  the  streams  as  "Little  Rigolets"  and  "Rigo- 
lets," respectively,  as  shown  on  the  plan  or  plat  marked  "Ex- 
hibit A,"  as  aforesaid,  said  poles  being  located  at  approximately 
a  distance  of  91.65  feet  apart,  and  at  a  distance  from  the  center 
of  the  main  line  of  defendant's  railroad  as  shown  on  the  profile 
filed  herewith  as  a  part  hereof  and  marked  "Exhibit  B." 


CONDEMNATION    PROCEEDINGS.  385 

That  the  right  so  to  maintain  the  said  line,  with  the  consent 
of  the  defendant,  will  expire  and  terminate  on  the  17th  day 
of  August,  1912,  and  though  the  plaintiff  endeavored  and 
offered  to  agree  with  the  defendant  as  to  the  value  of  the  use  or 
servitude  enjoyed  by  the  plaintiff  oh  the  said  strip  of  ground  or 
right  of  way  and  on  the  said  bridges  for  the  purpose  of  main- 
taining its  said  line  of  telegraph,  the  defendant  has  refused  to 
agree  with  the  plaintiff  as  to  the  terms  and  conditions  upon 
which  it  may  continue  to  enjoy  the  said  use  or  servitude,  an  1 
has  refused  to  permit  the  enjoyment  by  the  plaintiff  of  the  use 
or  servitude  after  the  expiration  of  the  license  under  which  the 
said  use  has  been  heretofore  enjoyed,  to-wit.  August  17,  1912. 

That  petitioner  being  a  corporation  organized  for  the  pur- 
pose of  transmitting  intelligence  by  magnetic  telegraph  is,  un- 
der and  by  virtue  of  the  state  of  Louisiana,  authorized  and  em- 
powered to  expropriate  the  right  to  construct  and  maintain  its 
lines  along  and  parallel  to  any  railroad  in  the  state,  when  such 
right  is  necessary  for  the  construction,  working,  operating  and 
maintaining  of  its  telegraph  line,  and  when  it  can  not  secure 
such  right  by  consent,  contract  or  agreement  upon  such  reason- 
able terms,  provided,  that  the  ordinary  use  of  such  railroad  be 
not  thereby  obstructed. 

That  it  is  necessary  for  the  constructing,  working,  operating 
and  maintaining  of  plaintiff's  telegraph  line  that  it  should  have 
the  right  to  erect  and  maintain  its  telegraph  poles,  wires  and 
appurtenances  along  and  parallel  to  the  line  of  railroad  and 
upon  the  right  of  way  and  the  bridges  crossing  the  streams  as 
"Little  Rigolets"  and  "Rigolets"  belonging  to  the  defendant 
company,  the  location  of  the  said  poles,  wires  and  appur- 
tenances constituting  plaintiff's  telegraph  line  being  fully  shown 
on  the  map  and  profile  heretofore  referred  to  and  filed  herewith 
as  a  part  hereof,  marked  "Exhibit  A"  and  "Exhibit  B,"  re- 
spectively. 

That  the  ordinary  use  of  the  defendant's  railroad  will  not  be 
thereby  obstructed. 


386  SUITS    AT    LAW. 

That  petitioner,  therefore,  desires  to  expropriate  such  right. 

That  petitioner  does  not  seek  to  acquire  the  fee  to  any  of 
the  lands  or  bridges  included  in  the  right  of  way  of  the  defend- 
ant, or  the  right  to  use  the  same  for  any  other  purpose  than  to 
erect  poles  with  cross-arms  thereon  and  to  string  wires  for  the 
use  in  transmission  of  intelligence  be  [by]  magnetic  telegraph 
as  aforesaid,  and  petitioner  proposes  to  maintain  and  repair 
the  said  poles,  cross-arms,  wires  and  appurtenances  as  may 
from  time  to  time  be  necessary  and  to  erect  and  maintain  only 
one  line  of  poles  with  cross-arms  tliereon  for  such  purposes. 

That  said  poles  are  to  be  not  less  than  thirty  feet  long  and 
not  less  than  twenty  inches  in  diameter  at  the  base,  and,  except 
in  the  case  of  the  poles  on  the  bridges  aforesaid,  are  to  be  set 
in  the  ground  to  a  depth  of  not  less  than  six  feet  in  such  man- 
ner as  to  hold  firmly  in  position. 

That  on  the  bridges  crossing  the  streams  known  as  "Little 
Rigolets"  and  "Rigolets,"  respectively,  the  poles  are  to  be  fast- 
ened and  attached  as  sliown  on  the  sketch  filed  herewith  as  part 
hereof  and  marked  "Exhibit  C." 

That  the  number  of  the  said  poles  is  not  to  exceed  forty  (40) 
to  the  mile,  and  they  all  to  be  securely  and  properly  braced,  and 
the  cross-arms  are  to  be  about  eight  or  ten  feet  in  length,  ex- 
tending from  four  to  five  feet  on  each  side  of  the  said  poles 
near  the  top. 

That  all  of  the  materials  used  by  your  petitioners  are  to  be 
the  best,  and  the  said  line  is  to  be  constructed  upon  the  most 
approved  plan  known  or  used  in  this  country. 

Petitioner  further  stipulates  and  agrees  that  if  at  any  time 
in  the  future,  after  the  erection  of  its  said  poles,  cross-arms  and 
wires,  or  after  its  acquisition  in  these  proceedings  of  the  right 
to  maintain  its  poles,  cross-arms  and  wires  as  presently  con- 
structed, it  should  become  reasonably  necessary  for  the  said 
defendant  to  change  the  location  of  its  tracks  or  to  construct 
new  tracks  or  sidetracks  where  the  same  do  not  now  exist,  and 
for  such  purpose  to  use  and  occupy  that  portion  of  the  said 


CONDEMNATION    PROCEEDINGS.  387 

right  of  way  on  which  petitioner's  poles  are,  or  may  be  set, 
petitioner  will,  at  its  own  expense,  upon  reasonable  notice  from 
the  defendant,  remove  the  said  poles,  cross-arms  and  wires  to 
such  other  point  or  points  on  the  said  defendant's  right  of  way 
as  may  be  reasonably  necessary  in  order  not  to  obstruct  the  use 
by  the  said  defendant  of  its  property. 

Petitioner  recognizes  fully  the  dominant  right  of  the  defend- 
ant in  the  said  right  of  way  and  bridges,  and  seeks  in  this  pro- 
ceeding to  condemn  merely  an  easement  or  servitude  over  the 
same  for  the  construction,  operation,  maintenance  and  repair  of 
its  telegraph  lines,  the  said  easement  or  servitude  to  be  used 
now  and  in  the  future  in  such  way  as  not  to  interfere  with  the 
proper  and  necessary  use  of  the  same  by  the  said  defendant  for 
railroad  purposes. 

Wherefore,  the  premises  considered,  petitioner  prays  for  an 
order  directing  the  clerk  of  this  honorable  court  to  give  notice 
to  the  said  Louisville  &  Nashville  Railroad  Company,  defend- 
ant, in  accordance  with  law,  and  that  a  copy  of  this  petition  and 
the  order  rendered  thereon,  together  with  a  notice  of  the  time 
at  which  a  jury  shall  be  impaneled  to  assess  the  value  of  the 
right  claimed  in  this  petition,  may  be  served  on  the  Louisville 
&  Nashville  Railroad  Company,  and  that  thereafter  a  jury  of 
freeholders  may  be  impaneled  in  the  manner  provided  by  law 
to  fix  and  assess  the  value  of  the  said  right  sought  to  be  expro- 
priated herein  and  fully  described  in  this  petition  and  in  the 
exhibits  annexed  hereto,  and  to  determine  the  damage,  if  any, 
the  railroad  company  will  sustain  in  the  premises  and  after  due 
proceedings,  for  judgment  expropriation  in  favor  of  petitioner 
and  against  the  defendant  the  right  of  use  for  a  telegraph  line 
as  aforesaid  over  the  right  of  way,  bridges  and  property  of  the 
defendant  company  in  the  form,  to  the  extent  and  within  the 
limitations  described  in  the  foregoing  petition  and  the  exhibits 
annexed  thereto. 

And  that  the  sum  due  by  petitioner  to  the  said  railroad  com- 
pany for  the  said  right  be  determined  and  decreed  to  be  paid 
to  the  said  railroad  company  as  pointed  out  by  law. 


388  SUITS    AT    LAW. 

And  petitioner  prays  for  all  general  and  eqnitable  relief. 

A.  B.  and  C.  D., 
Attorneys  for  Petitioner. 


No.  294. 

Answer  and  Claim  for  Damages  in  Condemnation  Proceedings. 

[Caption.] 

Cyrus  Bosworth,  a  citizen  of  the  state  of  Ohio,  respectfully 
claims  compensation  herein,  and  says  : 

First.  That  for  a  long  time,  to-\vit,  more  than  three  years 
prior  to  May  18,  1859,  Leonard  Case,  a  citizen  of  Ohio  and  a 
resident  of  Cleveland,  owned  the  following  lands,  to-wit : 
Situated  in  the  city  of  Cleveland,  county  of  Cuyahoga  and  state 
of  Ohio,  and  bounded  as  follows:  (1)  All  that  land  fronting 
on  Rockwell  street,  between  the  present  east  line  of  Park  Place 
and  the  west  line  of  Wood  street;  (2)  All  that  parcel  of  land 
lying  between  the  west  line  of  Wood  street  and  a  line  parallel 
with  and  distant  easterly  one  hundred  and  five  feet  from  th-^ 
Public  Square,  and  also  lying  within  the  north  line  of  Superior 
street  and  the  south  line  of  Rockwell  street;  the  said  second 
parcel  constituting  the  present  site  of  Case  library  and  the 
street  known  as  Case  Place ;  and  that  the  said  Leonard  Case, 
for  the  purpose  of  accommodating  and  facilitating  the  use  of 
his  said  property,  on  or  about  May  18,  1859,  conveyed  to  the 
city  of  Cleveland  the  following  parcel  of  land  for  street  pur- 
poses, to-wit : 

Situated  in  the  city  of  Cleveland,  county  of  Cuyahoga  and 
state  of  Ohio,  and  bounded  as  follows : 

Beginning  at  a  point  in  the  northerly  line  of  Superior  street ; 
thence  northerly  parallel  with  the  Public  Square  to  Rockwell 
street,  about  two  hundred  feet ;  thence  easterly  v/ith  Rockwell 
street,  thirty-five  feet;  thence  southerly  parallel  with  the  Public 
Square  about  two  hundred  feet  to  Superior  street ;  thence  west- 
erly with  Superior  street  to  the  place  of  beginning.     The  said 


CONDEMNATION    PROCEEDINGS.  389 

beginning  point  is  one  hundred  and  five  feet  easterly  from  the 
Public  Scjuare,  and  the  westerly  line  of  said  thirty-five  feet  is 
one  hundred  and  five  feet  easterly  from  the  Public  S(|uare. 

Second.  That  the  said  land  conveyed  to  the  city  of  Cleve- 
land (being  also  described  in  plaintiff's  application  herein)  was 
conveyed  to  the  city  of  Cleveland  as  and  for  a  public  street  in 
said  city,  and  for  no  other  purpose  whatsoever. 

Third.  That  on  or  about  the  18th  day  of  October,  1859,  the 
city  council  of  the  city  of  Cleveland,  by  ordinance,  accepted  and 
confirmed  tlie  dedication  of  said  parcel  of  land  so  conveyed  as 
and  for  a  public  street,  and  for  no  other  purpose  whatsoever. 

Fourth.     Claimant  further  says  that  said  Leonard  Case  died 

intestate  on  or  about ,  1864,  leaving  a  sister,  Sarah  Case 

Bosworth,  and  an  only  child  named  Leonard  Case,  Jr. ;  that 
said  Leonard  Case,  Jr.,  on  or  about  January  12,  1880,  died' 
intestate  and  without  issue,  and  that  claimant  herein  is  the 
only  child  and  heir-at-law  of  said  Sarah  Case  Bosworth ;  that 
claimant  is  now,  and  has  at  all  times  hereinbefore  mentioned, 
been  satisfied  with  the  use  of  said  parcel  of  land  (so  conveyec', 
confirmed  and  accepted)  as  and  for  a  public  street,  but  that 
in  the  event  said  parcel  of  land  (so  conveyed,  confirmed  and 
accepted)  is  appropriated  and  taken  by  the  United  States 
government,  applicant  herein,  for  a  postofiice  site,  then  in  that 
event  the  use  of  said  parcel  (being  said  parcel  of  land  so  con- 
veyed, accepted  and  confirmed)  as  and  for  a  public  street,  will 
cease;  and  claimant  is  owner  in  equity  and  at  law  of  the  fee 
simple  and  of  the  reversionary  interest  in  and  to  the  said  parcel 
of  land  (so  conveyed,  accepted  and  confirmed)  as  and  for  a 
public  street. 

Wherefore,  your  claimant  respectfully  asks  that  his  rights 
in  the  premises  shall  be  wholly  protected,  and  that  upon  final 
hearing  full  compensation  herein  shall  be  made  to  him. 

Cyrus  Bosworth, 
By  Y.  &  Y., 
Attorneys  for  Claimant. 


390 


SUITS   AT    LAW. 


State  of  Ohio, 
County  of  Cuyahoga,  ss. 

R.  Y.,  being  duly  sworn,  deposes  and  says  that  the  facts 
and  allegations  set  forth  in  his  foregoing  claim  for  com- 
pensation and  damages,  are  true  to  the  best  of  his  knowledge, 
information  and  belief.  R.  Y. 

Sworn  to  and  subscribed  in  my  presence  by  the  said  R.  Y., 
this  day  of ,  A.  D.  

ISeal']  H.  J.,  Notary  Public. 


No.  295. 

Another  Form  of  Answer  and  Claim. 

[Caption.'] 

Now  come  Annie  E.  Kerr  and  Frances  M.  Kerr,  and  for 
their  answer  to  the  petition,  say  that  on  or  about  the  ist  day 
of  January,  1880,  Leonard  Case  died  seized  of  an  estate  in  fee 
simple  in  the  premises  described  in  plaintiff's  petition  as 
parcel  No.  2 ;  that  the  said  Leonard  Case  died  intestate  and 
without  issue;  that  on  the  12th  day  of  January,  1880,  Levi 
Kerr  was  duly  appointed  administrator  of  said  estate  by  the 
probate  court  of  Cuyahoga  county,  Ohio,  and  that  such  pro- 
ceedings were  had  that  the  said  estate  was  fully  settled  and 
administered  by  the  said  Levi  Kerr  as  such  administrator; 
that  as  an  heir-at-law  of  the  said  Leonard  Case,  the  said  Levi 
Kerr  became  seized  of  an  undivided  interest  in  said  premises ; 
that  on  or  about  the  i8th  day  of  March,  1885,  the  said  Levi 
Kerr  died  testate,  and  on  the  2d  day  of  June,  1885,  Henry  G. 
Abbey  and  S.  K.  Gray  were  appointed  as  executors  of  said 
last  will  and  testament,  and  that  notice  of  said  appointment 
was  duly  made  and  published ;  and  that  afterwards,  to  wit,  on 
or  about  the  19th  day  of  October,  1895,  the  said  Abbey  re- 
signed said  trust,  and  the  said  S.  K.  Gray  became  the  sole 
executor  of  said  estate. 


CONDEMNATION    PROCEEDINGS.  391 

That  by  said  last  will  and  testament,  the  said  Levi  Kerr 
devised  unto  the  said  Laura  K.  Axtell  all  of  his  right,  title 
and  interest  in  and  to  the  premises  described  herein,  and  that 
as  such  residuary  devisee  and  in  her  own  right  she  became 
seized  of  an  undivided  interest  in  said  premises  hereinabove 
described. 

That  afterwards,  to  wit,  on  or  about  the day  of , 

1890,  the  said  Laura  K.  Axtell  died  testate,  and  her  last 
will  and  testament  was  duly  probated  in  the  probate  court  of 
Lake  county,  Ohio,  on  the  15th  day  of  August,  1890,  notice 
thereof  being  duly  published  as  required  by  law;  and  S.  K. 
Gray  and  Eckstein  Case  were  appointed  executors  of  the  said 
last  will  and  testament;  that  on  the  nth  day  of  November, 
1895,  the  said  S.  K.  Gray,  as  executor  of  the  estate  of  the 
said  Levi  Kerr,  made  a  full  and  final  settlement  of  said  estate 
of  Levi  Kerr,  which  settlement  was  approved  by  said  probate 
court  of  Cuyahoga  county;  and  on  the  8th  day  of  April,  1896, 
the  said  S.  K.  Gray  and  Eckstein  Case  filed  their  final  accounts 
as  executors  of  the  estate  of  Laura  K.  Axtell,  which  said  ac- 
count was  duly  approved  by  the  probate  court  of  Lake  county, 
Ohio,  on  the  i8th  day  of  August,  1896.  And  these  defend- 
ants say  that  by  said  last  will  and  testament  the  said  Laura 
K.  Axtell  devised  all  her  right,  title  and  interest  in  and  to  the 
premises  hereinabove  described,  share  and  share  alike,  unto 
Matilda  C.  Avery,  Mary  A.  Stockwell,  Annie  E.  Kerr,  Fran- 
ces M.  Kerr  and  Cornelia  H.  M.  Gray,  defendants  herein,  and 
unto  William  S.  Kerr,  since  deceased;  Eunice  K.  Parmelee, 
since  deceased,  and  unto  S.  K.  Gray  and  Wilbur  F.  Kerr. 
They  further  say  that  for  a  long  time  prior  to  the  i8th  day 
of  May,  1859,  the  above  mentioned  Leonard  Case  owned  the 
following  lands,  to  wit: 

Situated  in  the  city  of  Cleveland,  county  of  Cuyahoga,  and 
state  of  Ohio,  and  bounded  as  follows : 

First.  All  that  land  fronting  on  the  north  side  of  Rockwell 


392 


SUITS  AT   LAW. 


street,  between  the  present  east  line  of  Park  Place  and  the 
west  line  of  Wood  street. 

Second.  All  that  parcel  of  land  lying  between  the  west  line 
of  Wood  street  and  a  line  parallel  with  the  distant  easterly 
105  feet  from  the  Public  Square,  and  also  lying  within  the 
north  line  of  Superior  street  and  the  south  line  of  Rockwell 
street. 

The  said  second  parcel  constituting  the  present  site  of  Case 
library  and  the  street  known  as  Case  Place ;  and  that  the  said 
Leonard  Case,  for  the  purpose  of  accommodating  and  facilitat- 
ing the  use  of  the  said  above  described  property,  on  or  about 
May  18,  1859,  conveyed  to  the  city  of  Cleveland,  a  municipal 
corporation,  and  defendant  herein,  the  following  described 
parcel  of  land,  for  street  purposes,  to  wit : 

Situated  in  the  city  of  Cleveland,  county  of  Cuyahoga,  and 
state  of  Ohio,  and  bounded  as  follows,  beginning  at  a  point 
in  the  northerly  line  of  Superior  street ;  thence  northerly  par- 
allel with  the  Public  Square  to  Rockwell  street,  about  200 
feet;  thence  easterly  with  Rockwell  street  35  feet;  thence 
southerly  parallel  with  the  Public  Square  about  200  feet  to 
Superior  street ;  thence  westerly  with  Superior  street  to  the 
place  of  beginning.  The  said  beginning  point  is  105  feet 
easterly  from  the  Public  Square,  and  the  west  line  of  said  35 
feet  is  105  feet  easterly  from  the  Public  Square. 

That  the  said  above  described  land  so  conveyed  to  the  city 
of  Cleveland,  being  the  premises  described  in  plaintiff's  peti- 
tion as  pafrcel  No.  2,  was  conveyed  to  the  city  of  Cleveland 
as  and  for  a  public  street,  and  for  no  other  purpose  whatso- 
ever. That  on  or  about  the  i8th  day  of  October,  1859,  the 
city  council  of  the  city  of  Cleveland,  by  an  ordinance,  accept- 
ed and  confirmed  the  dedication  of  said  parcel  of  land  so  con- 
veyed as  and  for  a  public  street,  and  for  no  other  purpose 
whatsoever.  Defendants  say  that  they  are  now  and  have  at 
all  times  heretofore  been  satisfied  with  the  use  of  said  parcel 
of  land  so  conveyed  and  confirmed  and  accepted  as  and  for  a 


CONDEMNATION    PROCEEDINGS.  393 

public  Street,  but  that  in  the  event  said  parcel  of  land  so  con- 
veyed, confirmed  and  accepted  is  appropriated  and  taken  by 
the  United  States  government,  the  plaintiff  herein,  for  a  post- 
office  site,  then  and  in  that  event  the  use  of  said  parcel  of 
land,  being  the  said  parcel  of  land  so  conveyed,  accepted  and 
confirmed  as  and  for  a  public  street,  will  cease,  and  these  de- 
fendants are  the  owners  in  equity  and  at  law  of  the  fee  simple 
and  of  the  reversionary  interest  in  and  to  the  said  parcel  of 
land  so  conveyed,  accepted  and  confirmed  as  and  for  a  public 
street. 

Whe/efore,  these  defendants  pray  that  should  the  court 
find  the  appropriation  of  said  second  parcel  of  land  to  be 
necessary,  that  a  jury  may  be  empaneled  to  determine  and 
assess  the  value  of  said  premises  described  as  parcel  No.  2 
in  the  petition ;  that  the  court  may  find  and  determine  the 
right,  title  and  interest  which  these  answering  defendants  have 
or  ought  to  have  in  said  parcel  of  land,  and  that  upon  the 
payment  of  the  value  thereof  into  court  the  same  may  be 
ordered  distributed  to  these  defendants  as  their  interests  may 
appear,  and  for  such  other  and  further  relief  as  they  may  be 
entitled  to.  Y.  &  Y., 

[Verification.]  Attorneys   for  above  Defendants. 


No.  296. 

Another  Form  of  Answer  and  Claim. 

\_Caption.'] 

Now  come  Matilda  C.  Avery,  Mary  A.  Stockwell,  Cornelia 
H.  M.  Gray,  Aaron  M.  Wilcox,  Erastus  Parmelee,  Harley 
Barnes,  as  administrator  of  the  estate  of  Eunice  K.  Parmelee, 
deceased ;  A.  G.  Reynolds,  administrator  of  the  estate  of 
Wm.  S.  Kerr,  deceased ;  Almira  E.  Kerr,  B.  F.  Kerr,  W.  W. 
Kerr,  Nettie  K.  Baxter  and  H.  N.  Munson,  as  administrator 
of  the  estate  of  Abner  M.  Parmelee,  deceased,  and  for  an- 


394  SUITS   AT    LAW. 

swer  to  the  petition  say  that  on  or  about  the  ist  day  of  Janu- 
ary, 1880,  Leonard  Case  di'^d  seized  of  an  estate  in  fee  simple 
in  the  premises  described  in  plaintiff's  petition  as  parcel  No.  2. 
That  the  said  Leonard  Case  died  intestate  and  without 
issue;  that  on  the  12th  day  of  January,  1880,  Levi  Kerr  was 
duly  appointed  administrator  of  the  said  estate  by  the  pro- 
bate court  of  Cuyahoga  county,  Ohio,  and  such  proceedings 
were  had  that  said  estate  was  fully  settled  and  administered  by 
said  Levi  Kerr  as  such  administrator.  That  as  heirs-at-law 
of  the  said  Leonard  Case,  said  Levi  Kerr  became  seized  of  the 
undivided  one-tenth  interest  in  said  premises ;  that  on  or  about 
the  1 8th  day  of  March,  1885,  the  said  Levi  Kerr  died,  testate, 
and  on  the  2d  day  of  June,  1885,  Henry  G.  Abbey  and  S.  K. 
Gray  were  appointed  as  executors  of  said  last  will  and  testa- 
ment, and  that  notice  of  said  appointment  was  duly  made  and 
published;  that  afterward,  to  wit,  on  or  about  the  19th  day 
of  October,  1895,  the  said  Abbey  resigned  said  trust,  and 
the  said  S.  K.  Gray  became  the  sole  executor  of  said  estate; 
that  by  said  last  will  and  testament  the  said  Levi  Kerr  de- 
vised unto  the  said  Laura  K.  Axtell  all  of  his  right,  title  and 
interest  in  and  to  the  premises  described  herein,  and  that  as 
such  residuary  devisee  and  in  her  own  right  she  became 
seized  of  an  undivided  one-fifth  interest  in  said  premises  here- 
inbefore described ;  that  afterward,  to  wit,  on  or  about  the 

day  of  ,    1890,   the   said   Laura  K.   Axtell   died, 

testate,  and  her  last  will  and  testament  was  duly  probated 
in  the  probate  court.  Lake  county,  Ohio,  on  the  15th  day  of 
August,  1890,  notice  thereof  being  duly  published  as  re- 
quired by  law,  and  S.  K.  Gray  and  Eckstein  Case  were  ap- 
pointed executors  of  the  said  last  will  and  testament;  that  on 
the  4th  day  of  November,  1895,  the  said  S.  K.  Gray,  as  execu- 
tor of  the  estate  of  the  said  Levi  Kerr,  made  a  full  and  final 
settlement  of  said  estate  of  Levi  Kerr,  which  settlement  was 
approved  by  the  said  probate  court  of  Cuyahoga  county,  and 
on  the  8th  day  of  April,  1896,  the  said  S.  K.  Gray  and  Eck- 


CONDEMNATION    PROCEEDINGS.  395 

Stein  Case  filed  their  final  account  as  executors  of  the  estate 
of  Laura  K.  Axtell,  which  said  account  was  duly  approved  by 
the  probate  court  of  Lake  County,  Ohio,  on  the  i8th  day 
of  August,  1896. 

And  these  defendants  say  that  by  said  last  will  and  testa- 
ment, the  said  Laura  K.  Axtell  devised  all  of  her  right,  title 
and  interest  in  and  to  the  premises  hereinbefore  described, 
share  and  share  alike,  unto  the  said  Matilda  C.  Avery,  Mary 
A.  Stockwell,  Annie  E.  Kerr,  Frances  M.  Kerr,  Cornelia  H. 
M.  Gray,  defendants  herein,  and  unto  William  S.  Kerr,  since 
deceased;  Margaret  K.  Parmelee,  since  deceased;  Eunice  K. 
Parmelee,  sinec  deceased,  and  unto  S.  K.  Gray  and  Wilbur  F. 
Kerr. 

Afterwards,  to  wit,  on  or  about  the  25th  day  of  January, 
1896,  the  said  Wilbur  F.  Kerr  and  S.  K.  Gray,  by  mesne  cove- 
nants and  conveyances,  duly  sold,  assigned,  transferred  and 
conveyed  all  their  right,  title  and  interest  as  such  residuary 
devisees  in  said  premises  and  for  a  valuable  consideration  to 
the  defendant.  Aaron  M.  Wilcox ;  that  he  is  now  seized  of  and 
entitled  to  all  their  right,  title  and  interest  in  and  to  the 
same. 

That  the  said  William  S.  Kerr  died  on  or  about  the ■ 

day  of intestate,  leaving  the  defendant,  Almira  E.  Kerr, 

his  widow,  and  the  defendants,  B.  F.  Kerr,  W.  W.  Kerr  and 
Nettie  K.  Baxter,  his  heirs-at-law ;  that  they  are  now  seized  in 
fee  simple  of  all  the  right,  title  and  interest  of  the  said  Wm. 
S.  Kerr  in  and  to  said  premises  hereinbefore  described ;  the 
said  Margaret  K.  Parmelee  died  testate  in  the  year  1894, 
and  on  the  26th  day  of  May,  1894,  her  said  last  will  and  testa- 
ment was  duly  probated  in  the  probate  court  of  Lake  county,' 
Ohio,  and  the  said  Erastus  Parmelee  was  appointed  executor 
of  said  last  will  and  testament,  and  that  by  said  last  will  and 
testament  the  said  Margaret  K.  Parmelee,  deceased,  devised 
unto  the  said  Erastus  Parmelee  all  her  right,  title  and  interest 
in  said  premises  described  herein. 


396 


SUITS   AT    LAW. 


That  after  the  death  of  the  said  Laura  K.  Axtell,  the  said 
Eunice  K.  Parmelee  died,  intestate,  a  resident  of  Lake  county, 
Ohio,  and  by  proper  proceedings  had  in  the  probate  court  of 
said  county,  Harley  Barnes  was  appointed  administrator  of 
her  said  estate.  That  the  said  Eunice  K.  Parmelee  died 
without  issue,  leaving  her  husband,  Abner  M.  Parmelee,  her 
sole  heir-at-law,  who  afterwards  died,  testate. 

That  at  the  time  of  his  said  death,  he  was  a  resident  of 
Lake  county,  Ohio,  and  that  by  proper  proceedings  in  said 
probate  court,  his  last  will  and  testament  was  duly  probated, 
and  the  defendant,  H.  N.  Munson,  was  appointed  executor  of 
his  said  estate. 

That  thereafter  an  agreement  was  entered  into  by  the  heirs 
by  blood  of  Eunice  K.  Parmelee,  to  wit,  the  said  William  S. 
Kerr,  deceased;  Caroline  A.  Murray,  Erastus  Parmelee,  heir- 
at-law,  residuary  devisee  and  executor  of  the  estate  of  Mar- 
garet Parmelee,  deceased;  Christopher  Canfield,  Anna  Patch- 
en,  and  Anna  Patchen  as  guardian  for  Retta  Canfield,  and  the 
residuary  devisees  of  the  said  last  will  and  testament  of 
the  said  Abner  M.  Parmelee,  deceased,  to  wit :  Ergistus  Par- 
melee, Philander  Parmelee,  P.  Wick  Parmelee,  F.  A.  Parme- 
lee, Fred  J.  Parmelee,  Orlando  M.  Barber,  Caroline  M.  Ham- 
son,  Jennie  A.  Bartholomew,  R.  M.  Murray,  W.  P.  Murray, 
Edgar  D.  Barber  and  Robert  Barber,  whereby  it  was  agreed 
that  the  said  Harley  Barnes,  as  admiHistrator  of  the  estate 
of  Eunice  K.  Parmelee,  deceased,  should  convert  into  money 
all  of  the  estate,  real  and  personal,  of  the  said  Laura  K.  Axtell, 
deceased,  of  the  said  parties  thereto,  to  which  they  or  any  of 
them  might  be  entitled  as  heirs-at-law  of  the  said  Eunice  K. 
Parmelee,  deceased,  or  the  residuary  devisees  of  the  said  Abner 
M.  Parmelee,  deceased,  and  should  pay  to  the  said  H.  N. 
Munson,  as  executor  of  the  estate  of  the  said  Abner  M.  Par- 
melee, one-half  of  the  amount  so  obtained,  the  said  sum  so 
received  by  the  said  Munson  as  executor  to  be  distributed 
as  the  residuary  devisees  might  be  entitled  to  receive  the  same, 


CONDEMNATION    PROCEEDINGS. 


397 


and  the  remaining  one-half  of  said  fund  so  realized  to  be 
distributed  by  the  said  Harley  Barnes,  as  administrator, 
among  the  heirs  of  the  said  Eunice  K.  Parmelee,  deceased,  as 
they  may  be  entitled  to  receive  the  same. 

Wherefore,  these  answering  defendants  pray  that  should 
the  court  find  the  appropriation  of  the  said  second  parcel  to  be 
necessary  that  a  jury  may  be  impaneled  to  determine  and  as- 
sess the  value  of  said  premises  described  as  parcel  No.  2  in  the 
petition;  that  the- court  may  find  and  determine  the  right,  title 
and  interest  which  these  defendants  have  or  ought  to  have  in 
said  parcel,  and  that  upon  the  payment  of  the  value  thereof 
into  court,  that  the  same  may  be  ordered  distributed  to  these 
defendants  as  their  interest  may  appear,  and  for  such  other 
and  further  relief  as  they  may  be  entitled  to. 

Y.  &  Y., 

[Verification.]  Attorneys   for   Defendant. 


No.  297. 

Answer  to  Petition  to  Condemn  under  a  State  Statute  (i). 

[Cap  Hon.] 

And  now  comes  the  defendant  and  for  answer  to  the  plain- 
riff*  s  complaint  in  the  consolidated  action  herein,  denies  that 
the  said  plaintiff  is,  or  at  all  or  any  of  the  times  mentioned 
in  said  complaint  was,  a  corporation  duly  or  otherwise  incor- 
porated under  the  laws  of  the  said  state. 

Denies  that  the  said  plaintiff  has  the  power  to  exercise  the 
right  of  eminent  domain  in  this  proceeding  by  virtue  of  the 
authority  of  title  seven  of  special  proceedings  of  a  civil  nature 
of  the  revised  statutes  of  Idaho  of  1887,  or  otherwise. 

Denies  that  the  plaintiff  will  construct  a  telegraph  line  as 
described  and  set  forth  upon  the  route  or  plan  or  in  the  man- 
ner or  form  set  forth  in  said  complaint  or  otherwise;  and 


398  SUITS   AT    LAW. 

the  said  defendant  further  denies  that  its  said  right  of  way 
is  not  at  any  places  or  portions  thereof  less  than  one  hundred 
feet  in  width,  but,  on  the  contrary,  avers  that  in  some  por- 
tions thereof  it  does  not  exceed  fifty  feet  in  width  and  varies 
from  fifty  to  two  hundred  feet  in  width  on  different  portions 
of  its  said  route  and  right  of  way. 

And  the  defendant  denies  that  the  only  land  sought  to 
be  occupied  if  the  plaintiff  were  permitted  to  construct  said 
telegraph  line  as  proposed  will  be  one  circular  foot,  five  feet 
in  depth,  in  which  the  poles  for  said  line  will  be  planted,  or 
that  the  portion  of  said  right  of  way  proposed  to  be  taken  will 
be  only  a  very  small  fractional  part  of  the  entire  right  of  way 
of  this  defendant,  and  denies  that  the  use  to  which  it  is  pro- 
posed to  be  and  would  be  applied  if  so  taken  is  a  public  use,  or 
is  authorized  by  law,  or  that  the  taking  proposed  by  this 
proceeding  is  necessary  for  such  use,  or  that  the  public  or  any 
use  to  which  it  is  to  be  applied  as  proposed  by  said  complaint 
is  a  more  necessary  public  use  than  that  to  which  it  has 
already  been  appropriated. 

Defendant  denies  that  by  this  proceeding  the  plaintiff  docs 
not  seek  to  destroy  or  curtail  or  in  any  way  interfere  with 
the  franchises  or  rights  of  this  defendant.  Denies  that  so 
much  of  the  right  of  way  of  defendant  company  as  is  sought 
to  be  appropriated  to  the  use  of  the  plaintiff  has  not  been 
appropriated,  or  is  not  likely  in  the  future  to  be  needed  by  this 
defendant  for  railroad  purposes,  or  that  the  same  is  not  rea- 
sonably essential  to  such  use,  or  is  liable  under  the  law  to 
condemnation  proceedings  for  a  different  public  use  as  is 
sought  by  the  plaintiff  in  this  proceeding  or  otherwise. 

Denies  that  the  taking  sought  in  this  proceeding  will  not 
destroy  or  curtail  any  franchise  or  property  essential  to  the 
full  or  complete  enjoyment  by  this  defendant  of  its  franchise, 
right  of  way,  and  property. 

And  the  defendant  further  denies  that  such  portion  of 
the  right  of  way  of  this  defendant  as  is  sought  by  the  plain- 


CONDEMNATION    PROCEEDINGS.  399 

tiff  for  the  purposes  aforesaid  is  not  used,  or  that  the  same  or 
any  portion  thereof  is  not  essential  to  its  enjoyment  of  its 
franchises  or  property,  or  that  the  appropriation  sought  by  the 
plaintiff  in  this  proceeding  is  for  a  more  necessary  public  use 
than  that  to  which  it  has  already  been  appropriated. 

Further  answering,  the  defendant  denies  that  the  said  plain- 
tiff will  occupy  only  such  portion  of  the  right  of  way  of  this 
defendant  as  is  not  necessary  for  the  use  or  which  is  not 
being  used  by  this  defendant,  or  that  at  any  time  this  de- 
fendant needs  any  portion  of  its  right  of  way  where  the  said 
poles  and  lines  of  the  plaintiff  are  permitted  to  be  placed 
upon  said  right  of  way,  for  any  railroad  use,  the  plaintiff 
will  upon  reasonable  or  any  notice,  or  at  its  own  expense,  re- 
move its  poles  or  wires  to  such  or  other  parts  of  said  right  of 
way  as  may  be  designated  by  the  defendant  company,  or  so  as 
to  in  no  way  interfere  with  the  use  of  any  portions  of  the 
right  of  way  of  this  defendant  for  the  purposes  for  which  it 
has  already  been  appropriated. 

Denies  that  the  construction,  maintenance,  or  operation 
of  its  telegraph  line  upon  the  right  of  way  of  the  defendant 
railroad  company  as  appropriated  will  be  of  no  damage  to  the 
defendant,  or  will  not  diminish  in  value  said  right  of  way 
for  railroad  purposes;  and  defendant  denies  that  plaintiff's 
telegraph  line  will  not  come  in  contact  or  interfere  with  any 
telegraph  lien  already  constructed  on  said  right  of  way. 

Further  answering,  this  defendant  says  that  it  has  no  in- 
formation or  belief  sufficient  to  enable  it  to  answer  the  alle- 
gation in  said  complaint  with  reference  to  the  acceptance  by 
the  plaintiff  of  the  provisions  of  the  said  Act  of  Congress,  and 
upon  that  ground  it  denies  that  the  said  plaintiff  has  duly  or 
otherwise  accepted  the  provisions,  or  any  of  them,  of  the  said 
Act  of  Congress  approved  July  24,  1866,  or  agreeing  thereby 
that  telegrams  between  the  said  departments  of  the  govern- 
ment or  their  officers  or  agents  shall  at  all  or  any  times  have 
priority  over  all  other  business  in  their  transmission  over  the 


400  SUITS   AT   LAW. 

lines  of  said  company,  or  that  the  charges  for  such  tele- 
grams shall  not  exceed  the  rates  annually  fixed  by  the  post- 
master-general. And  the  defendant  denies  that  all  or  any  of 
the  preliminary  steps  required  by  law  have  been  taken  to  en- 
title the  plaintiff  to  institute  these  proceedings. 

Further  answering,  the  defendant  alleges  that  it  is  the 
successor  in  interest  of  the  rights  of  way  and  property  of 
the  Utah  Northern  Railroad  Company,  and  the  Oregon  Short 
Line  and  Utah  Northern  Railway  Company;  that  the  said 
rights  of  way  secured  by  the  said  companies,  the  predeces- 
sors in  interest  of  this  defendant,  were  secured  in  part  by 
negotiation  and  purchase  from  private  parties  owning  the 
lands  over  and  across  which  the  said  railroad  was  located  and 
constructed,  and  as  to  other  and  the  principal  portions  of  the 
said  right  of  way,  the  same  was  secured  by  special  grants 
made  by  various  Acts  of  Congress  to  the  defendant's  said 
predecessors  in  interest;  and  other' portions  of  said  right  of 
way  were  secured  by  compliance,  on  the  part  of  the  defend- 
ant's predecessors  in  interest,  with  the  provisions  of  the  Act 
of  Congress  of  the  United  States,  entitled  "  An  Act  granting 
to  railroads  the  right  of  way  through  the  public  lands  of  the 
United  States,"  approved  March  3,  1875. 

That  this  defendant  and  its  predecessors  in  interest  in  said 
right  of  way,  however  the  same  may  have  been  acquired,  have, 
ever  since  the  same  was  so  acquired,  held,  owned,  used,  and 
possessed  the  same  for  the  purposes  of  the  construction,  main- 
tenance, and  operation  of  said  line  of  railway,  and  that  the 
same  and  the  whole  thereof  is  necessary  for  such  use.  That 
the  predecessors  in  interest  of  this  defendant,  up  to  the  time 
that  the  said  property  and  right  of  way  was  transferred  to 
and  became  the  property  of  this  defendant,  and  this  defendant 
since  that  time,  has  had  and  now  has  the  full  dominion, 
possession,  and  undivided  control  over  every  portion  of  its 
said  right  of  way,  so  that  at  all  times  it  could  exclude  there- 
from  all    persons   not   in   its   employ   or   under   its    control, 


CONDEMNATION    PROCEEDINGS.  401 

and  that  such  possession  and  control  has  been  and  is  necessary 
to  enable  this  defendant  to  safely,  properly,  and  adequately 
discharge  its  obligations  as  a  common  carrier,  and  that  such 
obligations  could  not  be  properly  and  adequately  discharged 
if  this  defendant  by  the  proceedings  herein  should  be  com- 
pelled to  share  with  any  other  person  or  corporation  the  do- 
minion, possession,  and  control  over  its  said  right  of  way  or 
any  portion  or  part  thereof,  or  in  the  event  any  other  person 
or  corporation  should  acquire  the  right  of  ingress  and  egress 
at  all  times  over,  along,  and  upon  its  said  right  of  way  or  any 
portion  of  the  same. 

And  the  defendant  avers  that  no  power  or  authority  has 
been  given  the  plaintiff  or  any  other  person  or  corporation  to 
wrest  from  this  defendant  the  exclusive  dominion  and  con- 
trol over,  and  use  of  its  right  of  way  and  every  part  thereof,  or 
to  compel  the  defendant  to  share  the  same  with  any  other 
person  or  corporation  whatsoever. 

Defendant  further  avers  that  the  erection,  maintenance,  and 
operation  of  a  line  of  telegraph  on  the  right  of  way  of  said 
defendant  as  proposed  by  the  said  plaintiff  will  greatly  inter- 
fere with,  harass,  and  annoy  the  said  defendant  in  the  con- 
duct of  its  business,  and  will  materially  impair  and  interfere 
with  the  use  and  occupation  by  said  railroad  company  of  its 
said  right  of  way,  and  of  its  rights  of  property  thereunder  and 
possession  thereof,  and  will  increase  the  hazards  of  railway 
operation  by  it,  and  will  endanger  the  lives  and  property  of 
the  traveling  public  and  the  numerous  employees  of  this  de- 
fendant. And  the  defendant  denies  that  it  is  necessary  for 
the  said  plaintiff  to  take  or  acquire  the  right  of  way  along 
or  upon  the  right  of  way  of  this  defendant  described  and 
referred  to  in  the  complaint  herein,  and  alleges  that  to  create 
in  plaintiff  the  right  to  erect  and  maintain  such  line  of  tele- 
graph along  and  upon  the  right  of  way  of  this  defendant  at 
all  times  and  with  authority  and  power  to  enter  thereon  for 
the  purpose  of  maiptaining,    repairing,   and   operating   such 


402  •  SUITS   AT    LAW. 

telegraph  line,  will  destroy  the  franchise  and  rights  of  the  de-. 
fendant  company,  and  deprive  it  of  the  right  to  properly  and 
safely  operate  its  said  railroad,  and  prevent  it  from  discharg- 
ing the  obligations  in  that  behalf  imposed  by  law. 

Further  answering  the  said  complaint  this  defendant  avers 
that  the  laws  of  the  state  of  Idaho  have  conferred  upon  do- 
mestic telegraph  corporations  only  the  right  and  power  of 
eminent  domain,  and  have  not  conferred  such  power  upon  for- 
eign corporations,  but,  on  the  contrary,  it  is  the  policy  of  the 
said  state  of  Idaho  to  deny  to  foreign  corporations  such  pow- 
er and  authority.  And  the  defendant  alleges  that  the  Postal 
Telegraph-Cable  Company  of  New  York,  a  corporation  or- 
ganized and  existing  by  virtue  of  the  laws  of  said  state,  well 
knowing  the  policy  of  the  state  of  Idaho,  as  above  declared, 
and  well  knowing  the  inhibitions  of  the  law  of  said  state  de- 
nying to  foreign  corporations  the  right  to  exercise  eminent 
domain,  in  order,  nevertheless  to  circumvent  the  said  policy 
of  said  state  and  render  nugatory  the  laws  thereof  in  that  be- 
half, did  recently,  to  wit,  on  or  about  the day  of  July, 

1899,  cause  certain  of  its  employees  and  other  persons  to  or- 
ganize a  nominal  and  pretended  corporation  under  the  laws 
of  Idaho,  called  the  Postal  Telegraph-Cable  Company  of  Ida- 
ho, and  being  the  pretended  plaintiff  herein;  but  the  defend- 
ant avers  that  said  corporation  has  in  reality  no  separate  ex- 
istence from  the  Postal  Telegraph-Cable  Company  of  New 
York;  that  all  its  income,  from  whatever  source,  is  forthwith 
remitted  to  said  New  York  company  and  all  its  expenses 
borne  and  defrayed  by  said  company,  its  charges,  rates,  and 
business  policy  dictated  by  said  company,  and  that  the  sole 
and  only  purpose  of  said  organization  under  the  laws  of 
Idaho  was  and  is  to  enable  the  said  Postal  Telegraph-Cable 
Company  of  New  York,  by  means  of  said  pretended  and  al- 
leged corporation  of  Idaho,  to  exercise  within  the  limits  of 
said  last-named  state  the  right  and  power  of  eminent  domain, 
and  to  wrest  from  the  citizens  of  said  .State,   against  their 


CONDEMNATION    PROCEEDINGS.  403 

will  and  consent,  whatever  property  the  said  Postal  Tele- 
graph-Cable Company  of  New  York  deems  necessary  or  con- 
venient to  the  conduct  of  its  business. 

And  the  defendant  submits  that  the  said  foreign  corpora- 
tion, to-wit,  the  said  Postal  Telegraph-Cable  Company  of  New 
York,  ought  not  to  be  permitted  to  accomplish  by  indirection 
what  the  laws  of  the  state  of  Idaho  prohibit  it  from  doing  and 
accomplishing  in  its  own  name  and  directly. 

Wherefore,  the  defendant  prays  to  be  hence  dismissed,  with 
its  costs.  Y.  &  Y., 

[Verification.]  Attorneys  for  the  above  Defendants. 

(1)  Taken  from  record  in  Oregon  Short  Line  R.  R.  Co.  v.  Postal 
Telegraph  Cable  Co.  of  Idaho,  111  Fed.  842. 

See  also  Colorado  E.  Ry.  Co.  v.  Union  Pacific  Ry.  Co.,  41  Fed. 
293;  affirmed  in  94  Fed.  312;  and  see  Boom  Co.  v.  Patterson, 
98  U.  S.  403. 

See  note  (2)  under  No.  293. 


No.  298. 

Reply  to  Answer  in  Condemnation  Proceedings. 

[Caption.] 

And  now  comes  The  United  States,  by  J.  H.,  United  States 

Attorney  for  the  district  of ,  and  for  reply  to  the 

answer  of  F.  K.  to  the  petition  filed  herein,  says  that  it  denies 
that  the  defendant  has  any  interest  whatever  in  the  premises 
known  as  Case  Place,  and  described  as  Parcel  No.  2  in  plain- 
tiff's petition,  either  as  owner,  in  equity  or  at  law  of  the  fee 
simple  or  reversionary  interest  in  and  to  the  said  parcel  of 
land,  which  was  conveyed  by  Leonard  Case  to  the  city  of 
Cleveland  as  described  in  defendant's  answer. 

J.  H., 
United  States  Attorney, 
District  of . 


404  SUITS    AT    LAW. 

The  United  States  of  America. 

District  of ,  ss. 

J.  H.,  being  first  duly  sworn,  says  that  he  is  the  United 

States  attorney  for  the  district  of  ,  and  that  the 

statements  and  allegations  contained  in  the  foregoing  reply 
are  true,  as  he  verily  believes.  J.  H. 

Sworn  to  before  me,  and  subscribed  In  my  presence,  by  the 

said  J.  H.,  this day  of ,  A.  D.  . 

B.  B., 
Clerk  District  Court  of  United  States. 


No.  299. 

Judgment  of  Condemnation  and  Order  Appointing  Commis- 
sioners to  Assess  Damages. 

In  the  matter  of  the  petition  of  the  United  States  of  America 
for  condemnation,  for  the  use  of  petitioner  for  govern- 
ment lighthouse  purposes. 
Whereas,  it  has  been  made  to  appear  to  this  court  that  a 
petition  has  been  made  and  filed  in  this  court  for  condemna- 
tion of  the  above  described  property  and  land,  and  that  the 
petition  was  filed  for  the  purpose  of  acquiring  the  title  and 
ownership  of  the  said  land  for  the  United  States  of  America 
for  lighthouse    purposes   as   more    particularly    set    forth    in 
said  petition,  and  that  a  summons  was  issued  in  accordance' 

with  prayer  of  said  petition  summoning  the  village  of  , 

a  municipal  corporation  in  the  county  of ,  in  the  state  of 

,  and district  thereof,  and  one  M.  M.,  of ,  in 

said  district,  who  were  stated  in  said  petition  to  be  the  per- 
sons interested  in  said  lands  and  premises  and  who  were  cited 
by  said  summons  to  show  cause,  if  any  they  had,  against  the 
said  petition,  and  whereas  it  appears  by  the  return  of  the 
marshal  of  said  district  of ,   now  on  file  in  this 


CONDEMNATION    PROCEEDII^GS.  405 

cause,  that  due  and  personal  service  of  said  summons  was  had 

upon  the  president  of  said  village  of ,  and  upon  the  said 

M.  M.,  and  that  said  service  was  according  to  law  and  the 

practice  of  this  court,  and  whereas,  the  said  village  of  - 

has   this   day  appeared   in   said   cause,   by   T.   F.,   of  , 

as  its  attorney,  and  the  said  M.  M.  has  this  day  appeared  in 

said  cause,  by  J.  C,  of aforesaid,  as  her  attorney;  and 

whereas,  the  said  village  of and  the  said  M.  M.  were 

duly  notified  by  J.  N.,  United  States  Attorney  for  the  

district  of ,  that  this  case  could  be  brought  on  for  hear- 
ing before  this  court  this  day,  and  that  certain  action  partic- 
ularly set  forth  in  said  notice  would  be  taken  therein,  due 
proof  of  said  notice  now  being  on  file  in  said  cause,  and  the 
court  being  fully  informed  in  the  premises,  on  motion  of  said 
J,  N.,  United  States  Attorney  aforesaid,  the  court  did  pro- 
ceed to  hear  the  said  petition  and  all  persons  interested  there- 
in, and  to  decide  the  question  raised  therein,  and  after  an  ex- 
amination of  the  petition  and  other  papers  in  said  proceed- 
ings and  hearing  all  parties  interested,  on  motion  of  J.  N., 

United  States  Attorney  for  the  district  of  ,   the 

said  T.   F.,  attorney  for  the  said  village  of  ,  and  the 

said  J.  C,  attorney  for  the  said  M.  M,,  consenting  thereto, 
the  said  petition  and  proceedings  in  this  cause  are  sustained, 
and  E.  F.,  G.  H.,  and  J.  S.,  residents  and  freeholders  within 

the  said  county  of ,  neither  of  whom  is  interested  or  of 

kin  to  any  person  interested  in  the  said  land  or  any  part  there- 
of, as  commissioners  to  ascertain  and  determine  the  necessity 
for  taking  said  land  and  property  more  particularly  described 
in  said  petition,  and  also  to  ascertain  and  determine  the  com- 
pensation or  damages  or  both  which  ought  to  be  paid  by  the 
United  States  of  America  to  each  of  the  owners  and  persons 
interested  in  said  land  and  premises  as  and  for  his,  her,  its 
or  their  just  compensation  for  the  said  land  and  premises,  and 
also  to  ascertain  the  separate  interest  of  each  person  or  mu- 
nicipal  corporation   owning  or  interested  in  the  said  lands 


406  SUITS   AT    LAW. 

and  premises,  or  any  part  thereof,  and  the  description  of  his, 
her,  its  or  their  separate  interest  in  the  said  land  and  prem- 
ises or  any  part  or  parcel  thereof.  It  is  further  ordered  that 
said  commissioners  and  each  of  them  shall  be  sworn  to  faith- 
fully and  justly  discharge  their  duties  in  the  premises  accord- 
ing to  their  best  ability,  and  that  they  and  each  of  them  shall 
visit  the  said  land  and  premises,  and  shall  hear  in  the  pres- 
ence and  under  the  direction  of  said  court  evidence  touching 
the  matters  they  are  to  find  brought  forward  by  any  persons 
or  corporations  having  an  interest  in  said  land  and  premises, 
and  shall  find  all  necessary  facts  to  possess  the  court  of  the 
truth  and  right  of  the  matter,  but  shall  not  be  required  to  find 
what  evidence  was  offered  or  given,  and  shall  report  to  the 
court,  in  writing,  their  findings.  And  it  is  further  ordered 
that  all  testimony  that  shall  be  adduced  on  such  hearing  to  be 
had  before  said  commissioners  shall  be  given  under  oath, 
which  shall  be  administered  by  the  clerk  of  said  court  or  by 
any  one  of  said  commissioners  in  the  manner  and  form  pre- 
scribed by  the  laws  of  the  state  of  Michigan  in  and  for  simi- 
lar cases. 


No.  300. 

Report  of  Commissioners  of  Damages. 

The    District    Court    of    the    United    States    for    the    

District  of , Division. 

In  the  matter  of  the  petition  of  the  United  States  of  America 
for  condemnation,  for  the  use  of  the  petition  for  light- 
house purposes. 

To  the  Hon.  H.  S.,  District  Judge: 

The  undersigned,  commissioners  appointed  by  order  of  this 

court  in  said  matter  on  the day  of ,  requiring  them 

to  determine  the  necessity  for  taking  the  land  described  in 


CONDEMNATION    PROCEEDINGS.  407 

the  above  title,  also  the  compensation  or  damages  which  ought 
to  be  paid  by  the  United  States  to  each  of  the  owners  and 
persons  interested  in  said  land  for  his,  its  or  their  compensa- 
tion for  said  land,  and  the  separate  interest  of  each  person  or 
corporation  interested  in  said  land,  and  the  description  of 
each  of  their  separate  interest  therein,  beg  leave  to  report  that 
pursuant  to  the  mandates  of  said  order,  they 

First.  Were  duly  and  severally  sworn  by  a  United  States 
commissioner  to  faithfully  and  justly  discharge  their  duties 
in  the  premises  according  to  their  best  ability,  which  said 
oaths  are  in  writing  and  hereto  attached. 

Second.  After  due  and  lawful  notice  to  each  of  the  per- 
sons and  corporations  appearing  in  this  cause,  viz. :  the  United 

States  of  America,  village  of ,  and  M.  M.,  through  their 

several  attorneys,  they  did  proceed  to  and  did  visit  and  exam- 
ine the  said  land  and  premises,  and  after  the  service  of  no- 
tice aforesaid  to  each  of  the  interested  parties,  did,  under  the 
direction  of  said  court,  hear  evidence  produced  by  the  United 

States  of  America,  village  of and  M.  M.  touching  the 

said  matters,  the  witnesses  produced  aforesaid  being  first 
duly  sworn  by  E.  F.,  one  of  said  commissioners,  in  the  man- 
ner and  form  prescribed  by  the  laws  of  the  state  of in 

and  for  similar  cases. 

Third.  Your  commissioners  determined  from  the  exam- 
ination and  testimony  aforesaid  that  there  is  a  necessity  for 
taking  by  the  United  States  of  the  land  and  property  de- 
scribed in  said  petition  —  namely  [here  describe  the  property 
as  in  a  deed~\,  for  the  use  of  the  said  United  States  govern- 
ment for  lighthouse  purposes. 

Fourth.  We  find  that,  aside  from  the  municipal  corpora- 
tion of ,  no  person  or  corporation  has  any  interest  of  any 

kind  in  said  property,  and  that  the  village  of is  the  sole 

owner  in  fee  of  the  said  above-described  premises. 

Fifth.     Your  commissioners  assess  and  determine  the  value 


408  SUITS   AT    LAW. 

of  the  aforesaid  and  above-described  premises  at  the  sum  of 

dollars. 

Sixth.  Your  commissioners  further  determine  that  by  the 
taking  of  the  premises  described  above  the  maintaining  a  fog 
horn  thereon,  other  property,  to  wit :  a  park  belonging  to  said 

respondent, ,  is  damaged  to  the  amount  of dollars. 

E.  R, 
G.  H., 

J.  s., 

Commissioners. 


Dated 


No.  301. 


Judgment  for  Condemnation  and  for  Damages  (Jury  Waived) 

(I). 

[Caption.^ 

This  cause  having  come  on  regularly  to  be  heard  before 
the  court  and  without  a  jury,  a  jury  having  been  expressly 
waived  by  both  parties,  plaintiffs  appearing  by  J.  R.  Mcin- 
tosh, Esq.,  and  O.  W.  Powers,  Esq.,  and  the  defendant  ap- 
pearing by  P.  L.  Williams,  Esq.,  and  F.  S.  Dietrich,  Esq.,  and 
the  court  having  heard  read  the  pleadings  and  having  heard 
the  proofs  and  arguments  of  counsel,  and  having  duly  con- 
sidered the  pleadings,  proofs,  and  arguments  of  counsel,  and 
having  made  and  filed  its  findings  of  fact  and  conclusions  of 
law,  and  being  fully  advised  in  the  premises,  doth  order  and 
adjudge : 

That  the  use  to  which  the  property  which  plaintiff  seeks 
to  condemn  for  a  telegraph  line  is  a  public  use  authorized  by 
law,  and  that  the  public  use  requires  the  condemnation  of  the 
easement  sought  by  plaintiff  of  the  property  described  in 
plaintiff's  complaint,  the  taking  of  which  is  necessary  to  such 
use,  the  same  being  a  more  necessary  public  use  than  that  to 
to  which  it  is  already  appropriated,  namely,  a  right  of  way 


CONDEMNATION    PROCEEDINGS.  409 

for  defendant's  railroad  line;  that  the  property  sought  to  be 
condemned  by  plaintiff  constitutes  only  a  very  small  part  of 
a  large  parcel ;  that  no  damage  will  accrue  to  that  portion  not 
sought  to  be  condemned  by  reason  of  its  severance  from  the 
portion  condemned,  and  the  construction  of  the  telegraph  line 
of  plaintiff  as  the  same  is  to  be  constructed  by  plaintiff;  that 
in  the  taking  of  the  property  to  be  condemned  the  damages, 
including  the  value  of  the  property  to  be  taken,  will  not  ex- 
ceed five  hundred  dollars;  that  the  portion  of  the  land  not 
sought  to  be  condemned  will  neither  be  benefited  nor  damaged 
by  the  construction  of  the  telegraph  line  as  proposed  by  plain- 
tiff, and  that  the  sum  of  five  hundrea  dollars  will  remunerate 
the  defendant  for  all  damages  suffered  by  it  and  for  the  value 
of  the  property  taken  by  these  proceedings. 

Therefore,  the  court  doth  further  order  and  adjudge  that 
five  hundred  dollars  is  just  and  full  compensation  to  be  paid 
and  made  the  defendant,  the  Oregon  Short  Line  Railroad 
Company ;  that  upon  the  payment  by  plaintiff  to  defendant  of 
the  sum  of  five  hundred  dollars  within  thirty  days  from  the 
date  hereof  said  plaintiff,  the  Postal  Telegraph-Cable  Com- 
pany of  Idaho  be  let  into  possession,  operation,  and  control  of 
the  proposed  right  of  way  for  telegraph  purposes  and  the 
construction  and  operation  of  a  telegraph  line  as  set  out  in 
plaintiff's  complaint,  from  Cannon  Station  on  the  state  line 
between  the  .state  of  Utah  and  the  state  of  Idaho,  northerly 
and  across  the  state  of  Idaho  to  Monida,  upon  the  state  line 
between  the  state  of  Montana  and  the  state  of  Idaho,  upon  and 
along  the  right  of  way  of  defendant.  That  plaintiff  may  en- 
ter upon  the  right  of  way  of  defendant  to  construct,  main- 
tain, and  operate  said  telegraph  line  to  be  constructed,  com- 
mencing at  said  Cannon  Station  upon  the  right  of  way  of 
defendant,  and  running  thence  northerly  to  the  county  of 
Oneida  upon  defendant's  right  of  way ;  thence  northerly  along 
the  right  of  way  of  defendant  through  the  county  of  Ban- 
nock ;  thence  northerly    along  the  right  of  way  of  defendant 


410  SUITS   AT    LAW. 

through  the  county  of  Bingham;  thence  northerly  along  the 
right  of  way  of  defendant  through  the  county  of  Fremont  to 
Monida,  situate  on  the  state  line  between  the  state  of  Idaho 
and  the  state  of  Montana;  that  the  poles  for  the  line  of  tele- 
graph to  be  erected  by  plaintiff  upon  the  right  of  way  of  de- 
fendant be  thirty  (30)  feet  in  length,  planted  firmly  in  the 
ground  at  a  depth  of  not  less  than  five  ( 5 )  feet,  and  not  nearer 
than  thirty  (30)  from  the  outer  edge  of  the  railroad  bed'of  the 
defendant,  or  at  such  points  as  may  be  agreed  upon  by  said 
plaintiff  and  said  defendant ;  that  at  or  near  the  top  of  said 
poles  there  be  fastened  crossarms  eight  (8)  feet  in  length,  with 
insulators  attached,  upon  which  there  be  stretched, from  pole 
to  pole  a  sufficient  number  of  wires  to  transmit,  speedily  and 
promptly,  all  business  entrusted  to  said  plaintiff  for  transmis- 
sion by  the  government  and  the  public ;  that  where  it  becomes 
necessary  to  cross  the  track  of  said  railroad  of  said  defendant, 
said  poles  of  said  plaintiff  be  of  such  height  above  the  ground 
and  the  wires  strung  so  high  as  to  prevent  interference  with 
the  operation  or  conduct  of  defendant's  business,  and  so  as  not 
to  endanger  the  life  or  limb  of  defendant's  employees;  that 
if  at  any  time  defendant  needs  any  portion  of  its  right  of 
way  where  said  poles  and  telegraph  line  are  constructed,  for 
railroad  purposes,  then,  in  such  event,  the  plaintiff  shall,  upon 
reasonable  notice,  and  at  its  own  expense,  remove  said  poles 
and  telegraph  line  to  such  other  point  or  points  on  said  right 
of  way  as  may  be  designated  by  plaintiff;  that  said  telegraph 
poles  be  erected  at  a  distance  of  about  one  hundred  and  sixty- 
seven  feet  from  each  other,  and  consists  of  a  single  line  of 
poles,  the  line  of  telegraph  to  be  constructed  of  good  mate- 
rial and  upon  the  most  improved  plan;  said  poles  to  be  one 
foot  in  diameter  at  the  base  and  so  erected  as  to  be  held  firmly 
in  position ;  that  plaintiff  shall  not  attach  its  wires  or  fixtures 
of  any  kind  to  the  buildings,  trestles,  bridges,  or  structures  of 
the  defendant  railroad  company,  and  shall  not  erect  any  of 
its  poles  upon  any  embankment  of  the  defendant  company, 


CONDEMNATION    PROCEEDINGS.  411 

that  the  telegraph  line  of  plaintiff  shall  be  constructed  so  that 
it  will  not  come  in  contact  with  or  interfere  with  any  telegraph 
line  already  constructed  on  said  right  of  way  of  defendant. 

It  is  further  ordered  and  adjudged  that  plaintiff,  Postal 
Telegraph-Cable  Company  of  Idaho,  shall  in  all  manner  com- 
ply with  the  statutes  of  the  state  of  Idaho  in  the  construction 
of  its  line  of  telegraph  aforesaid,  and  with  its  representations 
in  its  complaint,  and  upon  the  payment  of  the  compensation 
aforesaid,  within  the  time  aforesaid,  the  Postal  Telegraph- 
Cable  Company  of  Idaho  is  hereby  authorized  to  enter  upon 
the  right  of  way  aforesaid  of  the  Oregon  Short  Line  Rail- 
road Company  and  construct  its  line  of  telegraph  as  above  set 
forth. 

It  is  further  ordered  and  adjudged  that  plaintiff  pay  the 
costs  of  this  proceeding. 

(1)  Taken  from  record  in  Oregon  Short  Line  R.  R.  v.  Postal  Tele- 
graph Cable  Co.  of  Idaho,  111  Fed.  842. 

See  also  Colorado  E.  Ry.  Co.  v.  Union  Pacific  Ry.  Co.,  41  Fed. 
293;  affirmed  in  94  Fed.  312;  and  see  Boom  Co.  v.  Patterson,  98  U. 
S.  403. 


No.  302. 

Order  Directing  that  a  Jury  be  Empanelled  to  Assess  Com- 
pensation for  Property  to  be  Condemned. 

l^Caption.l 

This  cause  coming  on  for  hearing,  and  being  submitted  to 
the  court  upon  the  evidence  produced,  the  court  find  that  the 
defendants  have  been  duly  served  with  process  and  are  prop- 
erly before  the  court,  and  further  find  that  the  plaintiff  has 
the  legal  right  to  make  the  appropriation  prayed  for  in  the  pe- 
tition, and  that  the  same  is  necessary,  and  that  plaintiff  is  un- 
able to  agree  with  the  defendants  as  to  the  compensation  to  be 
paid  for  the  property  sought  to  be  appropriated  herein,  to  all 
of  which  the  defendants,  each  and  all,  except. 


412  SUITS   AT    LAW. 

It  is  therefore  ordered  that  to  assess  compensation  for  said 
property,  herein  sought  to  be  appropriated,  a  jury  be  impaneled 

according  to  law,  and  that  said  jury  come  on  the day  of 

,  at o'clock  a.  m.,  which  time  is  hereby  fixed  for  the 

impaneling  of  the  same. 


No.  303. 

Order  Empanelling  Jury  to  Assess  DaQiages  in  Condemna- 
tion Proceedings 

[Caption.'] 

This  cause  came  on  this  day  to  be  heard  and  the  parties  and 
their  attorneys  appeared  and  also  the  following  named  jurors, 
heretofore  summoned  herein,  viz. :  [name  all  the  jurors],  and 
the  panel  not  being  complete,  it  was  ordered  that  the  mar- 
shal fill  the  vacancy  with  talesman  and  therefore  S.  D.  was 
called  and  the  panel  was  complete.  And  each  juror  being  in- 
terrogated as  to  whether  he  was  in  any  way  interested,  either 
as  owner  or  agent  or  otherwise,  in  the  property  sought  to  be 
condemned  and  appropriated,  and  each  answering  in  the  neg- 
ative, and  neither  party  excepting  thereto,  the  said  jurors 
were  duly  sworn  according  to  law. 

And  on  motion  of  J.  H.,  United  States  Attorney  for  the 

district  of ,  a  writ  was  issued  \<y  the  marshal  for  a 

view  by  the  jurors  in  the  presence  of  J.  D.,  of  the  premises 
sought  to  be  appropriated,  returnable  according  to  law  at  two 
o'clock  p.  m.,  and  thereupon  said  jury  having  heard  the  testi- 
mony adduced  on  behalf  of  the  defendant.  Case  Library,  in 
part,  and  the  hour  of  adjournment  having  arrived,  this  cause 
was  continued  until  tomorrow  morning  at  9 :  30  o'clock. 


CONDEMNATION    PROCEEDINGS.  413 

No.  304. 

'    Writ  to  Conduct  Jury  to  View  Premises  in  Condemnation 

Proceedings. 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  United  States  of  America,  to  H.  R. 

,  U.    S.   Deputy  Marshal   for  the  District  of 

,  —  Greeting : 

You  are  hereby  commanded  to  conduct  the  twelve  jurors 
herein  named,  to-wit :  [naming  them],  to  view  the  property  or 
premises  sought  to  be  appropriated  by  the  United  States  of 
America  and  owned  by  R.  S.,  et  al.,  then  and  there  to  view 
the  premises  and  property  aforesaid,  in  the  presence  of  J.  D., 
on  the  part  of  the  plaintiff  and  the  defendants ;  and  you  make 
return  of  the  manner  in  which  you  have  executed  this  writ, 
to  this  court,  forthwith  upon  its  execution. 

Witness  the  Honorable  Melville  W.   Fuller,  chief  justice 

of  the  United  States,  this day  of ,  A.  D.  ,  and 

in  the year  of  the  Independence  of  the  United  States  of 

America.  B.  R., 

{Seal.']        Clerk  of  the  District  Court  of  the  United  States 

for  the District  of 


No.  305. 

U.  S.  Marshal's  Return  to  Said  Writ. 

The  United  States  of  America, 

District  of ,  ss. 

Received  this  writ  on  the  27th  day  of  November,  1899,  at 
11:30  a.  m.,  and  upon  the  same  day  between  the  hours  of 
11:30  a.  m.  and  12:30  p.  m.,  I  personally  conducted  the 
within  named  jurors  through  the  Case  building  and  in  the 
presence   of   J.    D.,    appointed   by   the   court    for   that   pur- 


414  SUITS   AT   LAW. 

pose,  said  jury  viewed  the  exterior  of  said  building,  also  the 
interior  and  the  various  office  rooms  located  upon  the  several  , 
floors  of  said  Case  building,  together  with  the  basement  of 
said  building,  also  the  interior  of  the  Citizens'  Saving  and 
Loan  Association,  including  the  basement;  also  the  office  of 
the  Savings  Building  and  Loan  Company  including  the  base- 
ment; also  the  room  occupied  by  The  Electric  Supply  Con- 
struction Company,  including  the  basement.  Also  the  several 
rooms  located  on  three  separate  floors  used  and  occupied  by 
the  Case  Library  Association  for  its  library,  including  the 
basement. 

Thereupon  this  writ  is  returned,  fully  executed. 

H.  R., 

Deputy  U.  S.  Marshal district  of . 

Fees: 

Service    $2  00 

Travel    12 

Total    $2   12 


No.  306. 

Judgment  of  no  Damages  in  Condemnation  Proceedings  (i). 

[Caption.'] 

This  cause  came  on  to  be  heard  before  the  court  and  jury, 
duly  impaneled,  as  recited  above,  to  try  the  issues  joined  on 
the  pleadings,  the  petition  herein,  the  answer  of  certain  of 
the  heirs  of  Leonard  Case,  and  the  reply  of  The  United  States 
thereto,  and,  at  the  close  of  all  the  evidence,  by  direction  of 
the  court,  the  jury  returned  the  following  verdict : 

"  We,  the  jury  in  this  cause,  being  duly  impaneled  and 
sworn,  do  find  for  the  plaintiff  upon  the  issues  joined  between 
The  United  States  and  the  heirs  of  Leonard  Case. 

[Signed]  "John  F.  Blake,  Foreman." 


CONDEMNATION    PROCEEDINGS.  415 

Whereupon  it  is  considered  and  adjudged  that  the  heirs  of 
Loenard  Case,  made  parties  herein,  have  no  interest  in  the 
premises  known  as  Case  Place,  herein  appropriated,  and  are 
entitled  to  no  compensation  therefor. 

(1)  Costs  can  not  be  taxed  against  the  United  States  in  condemna- 
tion proceedings.  Carlisle  v.  Cooper,  64  Fed,  472,  12  C.  C.  A. 
235;  In  re  Post  Office,  etc.,  210  Fed.  832,  127  C.  C.  A.  382. 


No.  307. 

Verdict  for  Damages  Condemnation  Proceedings   (1). 

[Caption.] 

This  day  again  came  the  parties,  by  their  attorneys,  and 
also  came  the  jury  heretofore  impaneled  and  sworn  herein, 
and  the  jury  retired  to  their  room  in  charge  of  an  officer  of 
this  court  for  further  deliberation.  And  after  due  delibera- 
tion, they  returned  their  verdict  in  writing  to  the  court  as  fol- 
lows, to-wit :  "United  States  of  America  vs.  Case  Library. 
ct  al.  Verdict.  We,  the  jurors  in  this  cause,  duly  impaneled 
and  sworn,  do  assess  to  the  several  defendants  hereto  as  the 
actual  damages  which  will  be  caused  to  the  property  owned  by 
them,  or  the  interest  in  the  property  described  in  the  petition 
filed  herein,  by  reason  of  the  appropriation  of  the  same  to  the 
use  of  the  government,  as  follows: 

1.     To  Case  Library  the  full  market  value  of 

the  property  owned  by  it.  the  sum  of $510,000  00 

Less  amt.  allowed  L.  Scofield,  ct  al 6.064  29 


$503,935  71 

2.  To  Case  Library  for  the  cost  of  removing 
its  books  and  furniture,  and  for  damages  to  its 

books  caused  by  such  removal,  the  sum  of $3,170  00 

3.  To  the  Citizens  Saving  &  Loan  Association 
for  loss  and  damage  to  its  improvements  and  fix- 
tures, including  cost  of  moving,  the  sum  of $17,464  50 


416  SUITS   AT    LAW. 

4.  To  the  Citizens  Saving  &  Loan  Association 
for  the  loss  which  it  will  sustain  by  the  appropria- 
tion of  its  leasehold  estate  to  April  ist,  19 14,  the 

sum  of $20,342  50 

5.  To  the  Savings  Building  &  Loan  Company 
for  loss  and  damage  to  its  improvements  and  fix- 
tures, the  sum  of $1,645  00 

6.  To  the  Savings  Building  &  Loan  Company 
for  the  loss  which  it  will  sustain  by  the  appropria- 
tion of  its  leasehold  estate  to  March  31,  1901,  the 

sum  of $800  GO 

7.  To  the  Savings  Building  &  Loan  Company 
for  the  loss  which  it  will  sustain  by  the  appropria- 
tion of  its  option   for  a  leasehold   estate   from 

March  31,  1901,  to  March  31,  1906,  the  sum  of    $1,700  00 

8.  To  C.  H.  Estinghausen  for  the  loss  and 
damage  which  he  will  sustain  by  the  appropriation 

of  his  leasehold  estate  to  April  i,  1901,  the  sum  of        $580  00 

9.  To  Levi  T.  Scofield,  et  al.,  for  the  loss  and 
damage  which  they  will  sustain  by  the  appropria- 
tion of  their  leasehold  estate  in  said  Case  Library 
property,  the  sum  of ' 

John  Coon $1,376  79 

L.  T.  Scofield 4,687  50 


$6,064  29 

10.  To  F.  J.  Wing  for  the  loss  and  damage 
which  he  will  sustain  by  the  appropriation  of  his 
leasehold  estate,  the  sum  of $220  00 

11.  To  the  City  of  Cleveland  for  the  loss  and 
damage  which  it  will  sustain  by  the  appropriation 

of  the  street  known  as  Case  Place,  the  sum  of .  .  .  .  $1  00 

John  F.  Blake,  Foreman." 
Cleveland,  Ohio,  Dec.  6th,  1899, 


CONDEMNATION    PROCEEDINGS.  417 

And  said  verdict  was  read  in  open  court,  in  the  presence  of 
said  jurors  when  to  which  they  gave  their  assent. 

(i)  Taken  from  the  record  in  Avery  vs.  U.  S.  104  Fed.  Rep.  711,  44  C  C 
A.  161. 


418  SUITS    AT    LAW. 


DEPORTATION  OF  CHINESE. 

No.  308. 

Complaint  for  Deportation  of  a  Chinese  Person  (z). 

United  States  of  America, 

District  of ,  City  of and  County  of ,  ss. 

Before  me,  E.  H.,  a  United  States  Commissioner  for  the 
district  of ,  at ,  personally  appeared  this  day. 


S.  R.,  who,  being-  first  duly  sworn,  deposes  and  says,  that  he 
is  an  officer  of  the  United  States,  to  wit,  Chinese  Inspector  and 
Interpreter;  that  one  Florence  Doe  is  a  Chinese  manual  la- 
borer and  is  now  within  the  limits  of  the  district  of 

aforesaid,  without  the  certificate  of  residence  required  by 

the  Act  of  Congress  entitled  "  An  Act  to  prohibit  the  coming 
of  Chinese  persons  into  the  United  States,"  approved  May  5th, 
1892  and  the  Act  amendatory  thereof,  approved  November 
3d,   1893. 

Wherefore,  deponent  prays  that  a  warrant  for  the  arrest 
of  the  said  Florence  Doe  be  issued,  and  that  she  "be  arrested 
and  brought  before  the  said  United  States  Commissioner,  and 
upon  a  hearing  being  had,  that  she  be  duly  adjudged  to  be  il- 
legally in  the  United  States,  and  that  the  proper  order  for  the 
deportation  of  the  said  Florence  Doe  be  made  and  entered. 

S.  R. 

Subscribed  and  sworn  to  before  me,  this day  of , 

A.  D. .  E.  H., 

United  States  Commissioner  as  aforesaid. 

(i)  A  complaint  under  oath  to  a  United  States  commissioner  is  the 
proper  method  of  instituting  proceedings  for  deportation  of  a  Chinese 
person.  Qiin  Bak  Kan  vs.  U.  S.  186  U.  S.,  193 ;  U.  S.  vs.  Lee  Yen  Tai, 
185  U.  S.,  213.     Act  of  Sept.  13.  1888,  Sec.  13,  25  Stat,  at  L.  476. 


DEPORTATION    OF    CHINESE.  419 

As  to  procedure  under  this  act  and  earlier  acts,  see  U.  S.  v.  Long 
Hop,  55  Fed.  58. 

As  to  the  amount  of  evidence  necessary,  see  U.  S.  v.  Williams,  83 
Fed.  997,  and  U.  S.  v.  Pin  Kwan,  100  Fed.  609,  40  C.  C.  A.  618. 

The  proceeding  is  not  criminal  in  character.  In  re  Tsu  Tse  Mee,  81 
Fed.  562;  U.  S.  v.  Hing  Quong  Chow.  53  Fed.  233;  Ex  parte  Sing, 
82  Fed.  22. 

The  laws  and  decisions  relating  to  Chinese  immigration  are  elabo- 
rately reviewed  in  a  note  to  act  of  May  5,  1892,  2  Supp.  U.  S.  statutes 
14,  and  in  note  to  act  Nov,  3,  1893,  2  Supp.  U.  S.  statutes  153;  see  also 
act  of  July  7,  1898,  30  Stat.  L.  750,  and  the  act  of  April  29,  1902,  57th 
Cong,  session  1,  chap.  641. 

Under  the  Chinese  exclusion  acts,  a  proceeding  for  deportation 
is  civil  and  the  constitutional  provisions  constituting  safeguards  for 
persons  accused  of  crime  have  no  application,  hence  admissions  and 
statements  made  by  the  accused  before  or  after  his  arrest  may  be 
used  against  him,  and  the  government  may  call  him  as  a  witness. 
U.  S.  V.  Hung  Chang,  134  Fed.  19,  67  C.  C.  A.  93;  U.  S.  v.  Horn  Lim, 
214  Fed.  456. 

Defendant  claiming  to  be  a  citizen  of  the  United  States  may  take 
and  use  depositions  de  bene  esse.    In  re  Lam  Jung  Sing,  150  Fed.  608. 

Process  may  be  issued  returnable  to  any  other  district  of  the 
United  States.     U.  S.  v.  Long  Hop,  55  Fed.  58. 

As  to  the  functions  of  the  United  States  commissioners  in  such 
proceedings,  see  Ex  parte  Lung  Wing  Wun,  161  Fed.  211. 

A  hearing  de  novo  is  permitted  before  the  United  States  district 
■judge  by  these  acts.     U.  S.  v.  Louie  Lee,  184  Fed.  951. 

The  Chinese  exclusion  laws  are  not  in  any  manner  aflfected  by 
the  immigration  act  of  February  20,  1907,  34  Stat.  L.  898,  per  Sec. 
43  of  said  act,  and  a  Chinese  laborer  still  is  entitled  to  all  the  judicial 
proceedings  preserved  to  him  by  the  exclusion  acts  where  such  acts 
apply;  if  his  presence  in  the  United  States  is  also  a  violation  of  the 
immigration  act  he  may  be  dealt  with  in  the  summary  manner  pre- 
scribed by  that  act,  but  not  in  other  cases,  and  the  diversity  and 
conflict  among  holdings  in  the  district  courts  are  hereby  cleared  up. 
United  States  v.  Woo  Jan,  245  U.  S.  552,  62  L.  Ed.  466;  U.  S.  v.  Wong 
You,  223  U.  S.  67,  56  L.  Ed.  354.  is  distinguished  in  the  last  case. 

A  Chinese  who  has  had  a  full  hearing  before  a  commissioner  and 
has  been  found  to  be  properly  in  the  United  States  and  discharged 
from  custody,  can  not  be  again  apprehended  on  the  same  charge. 
U.  S.  V.  Young  Chu  Keng,  140  Fed.  748. 

Sundry  civil  appropriation  act  of  August  24,  1912,  chap.  355  and 
also  of  June  23,  1913,  chap.  3  provide  for  the  maintenance  or  return 
of  Chinese  applying  for  admission  and  refused,  and  for  the  deporta- 
tion of  such  as  come  under  the  exclusion  acts. 


420  SUITS   AT    LAW. 

Various  questions  relating  to  evidence  and  procedure  in  Chinese 
exclusion  proceedings  are  discussed  in  U.  S.  v.  Chin  Sing  Quong,  224 
Fed.  752,  affirmed  in  231  Fed.  948,  146  C.  C.  A.  144. 

The  constitutionality  of  these  acts  is  again  asserted  in  Louie 
Lit  V.  U.  S.,  238  Fed.  75,  151  C.  C.  A.  151.  And  that  the  facts  will  be 
taken  as  found  by  the  commissioner  except  in  a  perfectly  clear  case 
is  also  again  laid  down  in  Yee  Et  (Ep)  v.  U.  S.,  222  Fed.  66,  137 
C.  C.  A.  537. 

The  elaborate  immigration  act  of  February  5,  1917,  expressly  re- 
pealed the  act  of  February  20,  1907,  but  did  not  in  any  manner  effect 
the  Chinese  exclusion  acts,  1918  supplement  of  Fed.  Stat.  Ann., 
page  211. 


No.  309. 

(Another  form.) 

United   States   Commissioner's   Affidavit,   Complaint   or  In- 
formation for  Warrant. 

United  States  of  America, 

Northern  District  of  Ohio,  Eastern  Division,  ss. 

Before  me  Frederick  P.  Walther,  a  United  States  com- 
missioner for  the  Northern  District  of  Ohio,  Eastern  Division, 
personally  appeared  this  day  J.  A.  Fluckey,  Imm.  Insp.,  who, 
being  first  duly  sworn,  deposes  and  says  that  on  or  about  the 
30th  day  of  April,  A.  D.  1914,  at  Cleveland,  in  said  district, 
Lew  Loy  in  violation  of  Chinese  Exclusion  Act  of  the  revised 
statutes  of  the  United  States,  being-  then  and  there  a  Chinese 
person  and  a  person  of  Chinese  descent  was  then  and  there 
unlawfully  in  the  United  States  and  not  entitled  to  remain 
therein,  contrary  to  the  form  of  the  statute  in  such  cases  made 
and  provided,  and  against  the  peace  and  dignity  of  the  United 
States  of  America. 

Deponent  further  says  that  he  has  reason  to  believe  and 
does  believe  that  are  material  witnesses  to  the  subject- 
matter  of  this  complaint. 

[Deponent's  Signature.]  J.  A.  Fluckey, 

Immigrant  Inspector  in  Charge. 


DEPORTATION    OF    CHINESE.  421 

Sworn  to  before  me,  and  subscribed  in  my  presence,  this 
30th  day  of  April,  A.  D.   1914. 

[Seal  of  Commissioner.]  Frederick  P,  Walther, 

United  States  Commissioner  as  aforesaid. 


No.  310. 

Order  Designating  U.  S.  Commissioner  to  Try  Chinese  Per- 
son (1). 

I  hereby  designate  E.  H.,  United  States  Commissioner  for 

the  district  of ,  at  ,  before  whom  Yee  Ngoi, 

the  Chinese  person  named  in  the  foregoing  complaint  shall 
be  taken  for  hearing.                                                    J.  H., 
United  States  Attorney  for  the District  of . 

(1)  This  designation  is  usually  endorsed  on  complaint  made  before 
the  U.  S.  commissioner.  No  order  of  a  judge  is  necessary  to  author- 
ize commissioner  to  act.     U.  S.  v.  Lee  Lip,  100  Fed.  Rep.  842. 


No.  311. 

Warrant  of  Arrest  and  Marshal's  Return. 

Before  E.  H.,  United  States  Commissioner  for  District 

of ,  at . 

The  President  of  the  United  States  of  America,  to  the  Marshal 

of  the  United  States  for  the District  of ,  and 

His  Deputies,  or  any  or  either  of  Them,  Greeting : 

Whereas,  complaint  on  oath  of  J.  E.,  Chinese  Inspector  of 
the  United  States,  has  been  made  before  me,  that  one  Mary 

Doe,  a  Chinese  manual  laborer,  was  on  the day  of , 

A.  D., ,  found  unlawfully  within  the  limits  of  the  United 

States,  to-wit,  within  the district  of ; 

Now,  therefore,  you  are  hereby  commanded  to  arrest  the 
said  Mary  Doe  and  bring  her  before  me,  at  my  office,  in  room 
87,  in  the  United  States  Appraisers'  Building,  in  the  city  of 

and  county  of ,  that  she  may  then  and  there  be  dealt 

with  according  to  law. 


422  SUITS    AT    LAW. 

Witness  my  hand  at  my  office  aforesaid  this  day  of 

,  A.  D.  .  E.  H., 


United  States  Commissioner  for  the  District  of 

at . 

United  States  of  America, 

District  of . 


In  obedience  to  the  within  warrant  of  arrest,  I  have  the  body 
of  the  within  named  Mary  Doe.  whose  true  name  is  Lee  Ah 
Yin,  before  E.  H.,  the  United  States  Commissioner,  who  issued 

the  same  this day  of ,  A.  D. .    Arrested  at 

this day  of .  H.  S., 

United  States  Marshal. 

By  H.  B., 
Office  Deputy  Marshal. 


No.  312. 

(Another  form.) 
United  States  Commissioner's  Warrant  to  Apprehend. 

The  President  of  the  United  States  of  America, 
To  the  Marshal  of  the  United  States  for  the  Northern  District 
of  Ohio,  and  to  His  Deputies,  or  any  or  either  of  Them: 

Whereas,  J.  A.  Fluckey,  Imm.  Insp.,  has  made  complaint  in 
writing  under  oath  before  me,  the  undersigned,  a  United  States 
Commissioner  for  the  Northern  District  of  Ohio,  Eastern 
Division,  charging  that  Lew  Loy,  late  of  Cuyahoga  county  in 
the  state  of  Ohio  on  or  about  the  30th  day  of  April,  A.  D. 
1914.  at  Cleveland,  in  said  district,  in  violation  of  Chinese 
Exclusion  Act,  of  the  revised  statutes  of  the  United  States, 
being  then  and  there  a  Chinese  person  and  a  person  of  Chinese 
descent  was  unlawfully  in  the  United  States,  and  not  entitled 
to  remain  therein,  contrary  to  the  form  of  the  statute  in  such 
cases  made  and  provided,  and  against  the  peace  and  dignity  of 
the  United  States  of  America. 

Now,  therefore,  you  are  hereby  commanded,  in  the  name 
of  the  President  of  the  United  States  of  America,  to  apprehend 


DEPORTATION    OF    CHINESE.  423 

the  said  Lew  Loy  wherever  found  in  your  district,  and  bring 
his  body  forthwith  before  me  or  any  other  commissioner  having 
jurisdiction  of  said  matter  to  answer  the  said  complaint,  that 
he  may  then  and  there  be  dealt  with  according  to  law  for  the 
said  offense. 

[Seal  of  Commissioner.]  Frederick  P.  Walther, 

Given  under  my   hand   and   seal   this   30th   day  of  April, 
A.  D.  1914. 

[Seal  of  Commissioner.]  Frederick  P.  Walther, 

United  States  Commissioner  as  aforesaid. 

Endorsement  When  Returned. 
Received  this  warrant  on  the  30th  day  of  April.  1914,  at 
Cleveland,  Ohio,  and  executed  the  same  by  arresting  the 
within  named  Lew  Loy,  at  Cleveland,  Ohio,  on  the  30th  day 
of  April,  1914,  and  have  his  body  now  in  court,  as  within  I  am 
commanded.  Charles  W.  Lapp, 

U.  S.  Marshal,  Northern  District  of  Ohio. 
Per  W.  F.  Gauchat,  Deputy. 
22nd  day  of  June,  1914. 

Marshal's  fees — 

Service $7.00 

Travel   26 


$7.26 


No.  313. 

United  States  Commissioner's  Subpoena. 

Issued  May  21,  1915. 

United  States  of  America, 

Northern  District  of  Ohio,  Eastern  Division,  ss. 

The  President  of  the  United  States  of  America, 

To    the    Marshal    of    the    Northern    District    of    Ohio, 
Greeting : 
You  are  hereby  commanded  to  summon  Frank  M.  Potter, 

10633  Euclid;  John  Harris,  10628  Euclid;  William  Graham, 


424  SUITS   AT    LAW. 

10628  Euclid;  W.  J.  Rich,  10628  Euclid;  Franklin  J.  Zavesky, 
10616  Euclid;  G.  F.  Wilson,  letter  carrier  No.  174,  P.  O. 
Station  E.  E.,  105th  street,  if  they  be  found  in  your  bailiwick, 
to  be  and  appear  before  me  Frederick  P.  Walther,  a  United 
States  Commissioner  for  the  Northern  District  of  Ohio,  East- 
ern Division  aforesaid,  at  my  office.  Federal  Building,  Cleve- 
land, on  the  22nd  day  of  May,  1914,  at  2  o'clock  p.  m.,  to  give 
testimony,  and  the  truth  to  say,  in  a  cause  pending  before  me, 
wherein  the  United  States  is  complainant  and  Lew  Loy 
defendant. 

In  behalf  of  complainant. 

Hereof  fail  not,  under  the  penalty  of  the  law,  and  have  you 
then  and  there  this  writ. 

Given  under  my  hand   and   seal   this   21st   day   of   May, 
A.  D.  1914. 

[Seal  of  Commissioner.]         Frederick  P.  Walther, 

United  States  Commissioner  as  aforesaid. 

Endorsement  When  Returned. 
Marshal's  Return.  No.  8918. 
Received  this  writ  May  22,  1914,  and  on  the  same  day  I 
served  the  same  on  the  within  named  Frank  M.  Potter,  and 
John  Harris,  William  Graham,  N.  J.  Rich,  Franklin  J. 
Zavinsky  and  G.  F.  Wilson,  by  leaving  a  certified  copy  thereof 
with  each  of  them  personally  with  all  endorsements  thereon. 

Chas.  W.  Lapp,  U.  S.  Marshal, 
Northern  District  of  Ohio. 
By  Al.  p.  Kelley,  Deputy. 

Service $3.00 

Travel 60 


$3.60 
Marshal's  fees  and  costs  on  this  writ,  $3.60. 


DEPORTATION    OF    CHINESE.  425 

No.  314. 

United  States  Commissioner's  Temporary  Recognizance  for 
Appearance  before  Commissioner. 

United  States  of  America, 

Northern  District  of  Ohio,  Eastern  Division,  ss. 
Be  it  remembered,  that  on  this  30th  day  of  April,  A.  D. 
1914,  before  me,  a  United  States  Commissioner  for  the  said 
Northern  District  of  Ohio,  Eastern  Division,  personally  came 
Lew  Loy,  principal,  and  James  W.  Stewart,  as  sureties  and 
jointly  and  several  acknowledged  themselves  to  owe  the 
United  States  of  America  the  sum  of  two  thousand  dollars, 
to  be  levied  on  their  goods  and  chattels,  lands  and  tenements, 
if  default  be  made  in  the  condition  following,  to-wit : 

The  condition  of  this  recognizance  is  such,  that  if  the  said 
Lew  Loy  shall  personally  appear  before  me,  Frederick  P. 
Walther,  a  United  States  Commissioner  as  aforesaid,  at  my 
office.  Federal  Building,  in  the  city  of  Cleveland  and  district 
aforesaid,  on  the  6th  day  of  May,  A.  D.  1914,  at  11  o'clock 
a.  m.  and  from  time  to  time  thereafter,  to  which  the  case  may 
be  continued  then  and  there  to  answer  the  charge  of  having 
on  or  about  the  30th  day  of  April,  A.  D.  1914,  within  said 
district,  in  violation  of  Chinese  Exclusion  Act  of  the  revised 
statutes  of  the  United  States,  unlawfully  being  a  Chinese  per- 
son and  a  person  of  Chinese  descent  and  was  unlawfully  in  the 
United  States  and  not  entitled  to  remain  therein,  and  then 
and  there  abide  the  order  of  said  commissioner,  and  not  depart 
from  said  district  without  leave,  then  this  recognizance  to  be. 
void,  otherwise  to  remain  in  full  force  and  virtue. 

Lew  Loy, 
Jas.  W.  Stewart. 

Taken  and  acknowledged  before  me  on  the  day  and  year 
first  above  written. 

[Seal  of  Commissioner.]  Frederick  P.  Walther, 

United  States  Commissioner  as  aforesaid. 


426  SUITS   AT    LAW. 

United  States  of  America, 

Northern  District  of  Ohio,  Eastern  Division,  ss. 

J.  W.  Stewart,  a  surety  on  the  annexed  recognizance  being 
duly  sworn,  deposes  and  says  that  he  resides  at  Stop  3% 
Euclid  road,  in  the  city  of  Cleveland,  in  said  district,  that  he 
is  a  freeholder  in  the  county  of  Cuyahoga,  that  he  is  worth  the 
sum  of  four  thousand  dollars,  over  and  above  all  his  just  debts 
and  liabilities,  in  property  subject  to  execution  and  sale,  and 
that  his  property  consists  of  real  estate  at  Wade  Park  and 
Lake  View  avenue,  in  the  city  of  Cleveland. 

[Affiant's  Signature.]  J  as.  W.  Stewart. 

Sworn  to  and  subscribed  before  me  this  30th  day  of  April, 
A.  D.  1914. 

[Seal  of  Commissioner.]  Frederick  P.  Walther, 

United  States  Commissioner  as  aforesaid. 


No.  315. 

Findings,  Judgment,  and  Order  of  Deportation  (1). 

Before   E.    H.,    United    States   Commissioner   for   the   

District  of ,  at . 

United  States  of  America,  ^ 

vs.  V  No.  . 

Lee  Ah  Yin  (A  Female).   ) 

A  complaint  verified  by  the  oath  of  J.  E.,  a  United  States 
officer,  to-wit,  a  Chinese  inspector  and  interpreter,  having  been 
filed  before  me,  the  undersigned  United  States  Commissioner, 
charging  the  said  Lee  Ah  Yin  with  a  violation  of  the  Act 
of  Congress  of  the  United  States,  entitled,  "An  Act  to  Prohibit 
the  Coming  of  Chinese  Persons  into  the  United  States," 
approved  May  5,  1892,  and  of  the  act  amendatory  thereof, 
approved  November  3,  1893,  and  a  warrant  for  the  arrest  of 
the  said  Lee  Ah  Yin  having  been  issued  by  me  thereon,  and 
the  said  Lee  Ah  Yin  having  been  duly  apprehended  upon  the 
said  warrant  by  the  United  States  Marshal  for  the dis- 


DEPORTATION    OF    CHINESE.  427 

fcrict  of  ,  and  brought  before  me  for  hearing  upon  said 

charge  [the  United  States  Attorney  for  the  northern  district 
of  California  having  duly  designated  me  as  the  United  States 
Commissioner  before  whom  said  Lee  Ah  Yin  should  be  taken 
for  hearing]  and  the  said  Lee  Ah  Yin,  having  been  duly 
informed  by  me  of  the  charge  against  her  and  of  her  right  to 

the  aid  of  counsel,  on  the day  of ,  A.  D.  ,  the 

said  Lee  Ah  Yin  being  present  in  person  and  her  attorneys, 
L.  P.  and  S.  M.,  esquires,  and  United  States  Attorney  M.  B., 
esquire,  appearing  for  the  United  States,  this  cause  came  on 
regularly  for  hearing,  and  the  same  having  been  duly  heard 
and  submitted,  and  due  consideration  having  been  thereon  had, 
I  do  find  as  follows :  That  the  said  Lee  Ah  Yin  is  a  Chinese 
manual  laborer,  and  was  born  in  and  is  a  subject  of  the  Empire 
of  China;  that  she  was  found  within  the  limits  of  the  United 
States,  to-wit,  in  the  city  and  county  of  San  Francisco,  in  the 

district  of ,  on  the day  of ,  A.  D.  , 

and  that  when  she  was  so  found  as  aforesaid,  she  was  without 
the  certificate  of  residence  required  by  said  acts;  and  she  has 
not  clearly  established,  that  by  reason  of  accident,  sickness, 
or  other  unavoidable  cause,  she  has  been  unable  to  procure 
such  certificate. 

Now,  therefore,  in  consideration  of  the  premises  aforesaid, 
it  is  ordered,  adjudged,  and  decreed  that  the  said  Lee  Ah  Yin 
be  deported  from  the  United  States  to  the  country  from  whence 
she  came,  to-wit,  China.  And  it  is  further  ordered  that  such 
deportation  of  the  said  Lee  Ah  Yin  be  made  from  the  port  of 
,  in  the district  of ,  and  that  she  be  hereby  com- 
mitted to  the  custody  of  the  United  States  Marshal  for  the 

district  of ,  to  carry  this  order  into  effect. 

Witness  my  hand  at  my  office,  in  the  city  and  county  of , 

in  the  district  aforesaid,  this day  of ,  A.  D.  . 


E.  H., 
United  States  Commissioner  for  the 
District  of ,  at . 


428  SUITS    At    LAW. 

(1)  The  order  of  deportation  need  only  show  that  the  person  to  be 
deported  is  adjudged  to  be  unlawfully  in  the  United  States.  In  re 
Wong  Fock,  81  Fed.  558;  In  re  Gut  Lun,  83  Fed.  141. 

As  to  the  effect  of  finding  of  a  commissioner,  see  U.  S.  v.  Chung 
Fung  Sun,  63  Fed.  261. 


No.  316. 

(Another  form.) 
Entry  of  Deportation. 

Whereas,  on  the  30th  day  of  April,  1914,  complaint  on  oath 
and  in  writing  was  made  by  J.  A.  Fluckey,  United  States 
Immigration  Inspector  in  Charge,  before  me,  Frederick  P. 
Walther,  a  United  States  Commissioner  for  the  northern  dis- 
trict of  Ohio,  designated  to  hear  and  determine  Chinese  De- 
portation cases,  wherein  Lew  Loy  was  charged  with  being  a 
Chinese  person  and  a  person  of  Chinese  descent  unlawfully 
within  the  United  States,  in  violation  of  the  Act  of  Congress 
of  May  5,  1892,  as  amended,  the  said  defendant  being  on  the 
warrant  issued  by  me  arrested  and  arraigned  before  me  charged 
as  aforesaid,  on  the  30th  day  of  April,  1914;  and, 

Whereas,  on  the  22nd  day  of  June,  1914,  this  case  came  on 
for  trial  before  me,  the  said  United  States  Commissioner,  at 
my  office  in  the  city  of  Cleveland,  in  said  district,  and  after 
hearing  and  considering  the  evidence  in  said  case,  it  appearing 
to  me,  the  United  States  Commissioner  as  aforesaid,  and  it 
being  hereby  found,  that  the  said  defendant  is  a  Chinese  person 
and  a  person  of  Chinese  descent  and  a  laborer  within  the 
United  States,  and  that  the  said  defendant  has  failed  to  estab- 
lish by  affirmative  proof  to  my  satisfaction  his  lawful  right  to 
remain  in  the  United  States. 

Now,  therefore,  it  is  hereby  adjudged  and  decreed  that  the 
said  Lew  Loy  is  a  Chinese  person  and  a  person  of  Chinese 
descent  and  is  a  laborer  unlawfully  within  the  United  States, 
as  charged  in  the  complaint,  and  that  he  is  not  lawfully  entitled 
to  be  or  remain  in  the  United  States ;  and  it  is  accordingly 


DEPORTATION    OF    CHINESE.  429 

Ordered  that  said  Lew  Loy  be  forthwith  removed  from  the 
United  States  to  the  Republic  of  China,  and  that  until  such 
time  as  this  judgment  can  be  executed,  the  said  Lew  Loy  be 
committed  to  the  jail  of  the  county  of  Cuyahoga,  in  said  dis- 
trict.   And  it  is  further 

Ordered,  that  the  United  States  Marshal  for  this  district 
shall  carry  this  order  into  effect. 

Witness  my  hand  and  official  seal  this  22nd  day  of  June, 
A.  D.  1914. 

[Seal  of  Commissioner.]         Frederick  P.  Walther, 
United  States  Commissioner,  Northern  District  of  Ohio, 
Eastern  Division. 


No.  317. 

(Another  form.) 
Order  by  Judge  on  Appeal. 

And  now,  to-wit,  April  26th,  1917,  the  defendant,  Young  Ti, 
alias,  etc.,  having  filed  his  appeal  in  this  court  from  the  order 
of  Roger  Knox,  United  States  Commissioner,  convicting  the 
said  defendant  of  being  a  Chinese  person  unlawfully  in  this 
country  in  violation  of  the  Chinese  Exclusion  Acts  and  order- 
ing his  deportation  to  the  country  from  whence  he  came,  to-wit, 
the  Republic  of  China,  and  the  said  case  having  come  on  to  be 
heard  in  this  court  on  the  said  appeal  and  the  court  having 
heard  the  same  and  having  this  day  filed  an  opinion  affirming 
the  judgment  and  order  of  the  said  United  States  Commis- 
sioner, it  is  now  ordered,  adjudged  and  decreed  in  conformity 
with  said  opinion  that  an  alien  order  of  deportation  issue  for 
the  removal  of  the  said  defendant  Young  Ti,  alias  Yok  Ti, 
alias  Lee  Yok  Ti,  ascertained  to  be  Lee  Young  Dye,  to  the 
country  from  whence  he  came,  viz.,  the  Republic  of  China, 
and  the  clerk  of  the  district  court  is  hereby  directed  to  issue 
such  order.  Chas.  P.  Orr, 

U.  S.  District  Judge. 

Filed  April  20,  1917. 


430  SUITS    AT    LAW. 

No.  318. 

Petition  for  Appeal  from  Commissioner  (1). 

United  States  of  America, 
— '■ —  District  of . 

Before  the  Honorable  E.  H.,  United  States  Commissioner. 

The  United  States  of  America,  PlaintifiF. 
vs. 
Lee  Ah  Yin,  Defendant. 

The  above  named  defendant,  Lee  Ah  Yin,  conceiving  her- 
self aggrieved  by  the  order  of  deportation  entered  on  the 

day  of ,  in  the  above  entitled  proceeding,  by  Honorable 

E.  H.,  United  States  Commissioner  aforesaid,  which  order  of 
said  commissioner  does  direct  and  provide  that  said  defendant 
shall  be  deported  to  China,  on  the  ground  of  her  being  now 
unlawfully  within  the  United  States,  does  hereby  appeal  from 
said  order  to  the  district  judge  of  the  United  States  for  the 

district  of ,  and  she  prays  that  this,  her  appeal,  may 

be  allowed ;  and  said  defendant  does  hereby  give  notice  to  the 
plaintiff  herein  of  such  appeal,  and  that  the  same  is  now  and 
hereby  taken  upon  questions  of  both  law  and  fact,  and  said 
defendant  further  prays  that  a  transcript  of  the  record  and 
proceedings,  papers  and  exhibits,  upon  which  the  said  order 
was  made,  duly  authenticated,  may  be  sent  to  the  district  judge 

of  the  United  States  of  the district  of ,  in  due  course 

of  procedure. 

Dated .  Lee  Ah  Yin, 

Defendant  and  Appellant. 
R.  Y., 
Attorney  for  Defendant  and  Appellant. 

(1)  The  appeal  from  a  commissioner  is  to  the  district  judge  and 
not  court,  see  Chow  Loy  v.  U.  S.,  112  Fed.  354,  and  must  be 
taken  within  ten  days  from  the  conviction.  Sec.  13  of  the  act  of 
September  13,  1888,  25  Stat.  L.  476;  U.  S.  v.  See  Ho  How.  100  Fed. 
730. 


DEPORTATION    OF    CHINESE.  431 

The  right  of  appeal  is  not  taken  away  by  subsequent  legislation. 
U.  S.  V.  Wong  Dep.  Ken,  57  Fed.  203,  and  is  expressly  granted 
to  the  United  States  district  court  in  the  Judicial  Code,  Sec.  25. 


No.  319. 

Assignment  of  Errors  on  Appeal  to  District  Judge  (1). 

Before   E.    H.,   United   States   Commissioner   for   the  — 
District  of ,  at . 

United  States  of  America,  ^ 

vs.  >  No.  . 

Yee  Ngoi  (A  Female).       ) 

First.     E.  H,,  United  States  Commissioner  for  the  — 


district  of ,  at ,  California,  had  no  power  or  author- 
ity to  make,  render  or  enter  the  judgment  and  order  of  de- 
portation herein. 

Second.  Said  judgment  and  order  of  deportation  are  void 
for  want  of  jurisdiction. 

Third.  The  findings  of  said  United  States  Commissioner 
that  said  defendant  was  a  Chinese  manual  laborer  and  was 
iborn  in,  and  is  a  subject  of,  the  Empire  of  China,  are  con- 
trary to  and  not  justified  by  the  evidence  in  this:  (1)  That 
there  is  no  evidence  that  the  defendant  was  born  in  China; 
(2)  That  the  evidence  showed  that  the  defendant  was  born 
in  the  city  and  county  of  San  Francisco,  state  of  California, 
United  States  of  America,  and  that  she  is  a  citizen  of  the 
United  States  of  America. 

Fourth.  The  judgment  and  order  of  deportation  herein 
are  contrary  to  and  not  justified  by  the  evidence  for  the  reasons 
assigned  in  the  last  foregoing  assignment  of  errors. 

Fifth.  The  judgment  and  order  of  deportation  are  con- 
trary to  law. 


432  SUITS    AT    LAW. 

Sixth.    Said  United  States  Commissioner  erred  in  rendering 
and  entering  the  judgment  and  order  of  deportation  herein. 

Seventh.     Said  United  States  Commissioner  erred  in  not 
ordering  a  dismissal  herein.  R.  Y., 

Attorney  for  Defendant. 


(1)  The  language  of  Sec.  13  of  the  act  of  September  13, 
25  Stat.  L.  476,  is  misleading  in  that  both  the  terms,  judge  of  a  United 
States  court,  and  a  United  States  court,  are  used  as  if  they  were 
independent;  consequently  there  was  a  contrariety  of  practice  in  the 
different  districts  in  the  matter  of  appeal  from  the  United  States 
commissioner  to  the  district  court,  questioning  the  order  of  the  com- 
missioner. The  uncertainty  was  removed  by  the  supreme  court  in 
U.  S.,  Petitioner,  194  U.  S.  194,  in  which  it  was  held,  in  accordance 
with  decisions  in  cases  where  the  same  general  question  was  raised 
in  other  connections,  that  the  appeal  here  was  to  the  district  court. 
In  the  Judicial  Code,  Sec.  25,  36  Stat.  L.  1094,  it  is  provided  that 
in  Chinese  exclusion  cases  the  appeal  from  the  commissioner  is  to 
the  district  court. 


No.  320. 

Assignment  of  Errors  on  Appeal  to  District  Court. 

Before  Honorable  E.  H.,  United  States  Commissioner  for  the 
District  of  ,  at  . 

The  United  States,  Plaintiff  and  Respondent,  ^ 

vs.  >  No. . 

Lee  Ah  Yin,  Defendant  and  Appellant.  ) 

Now  comes  the  defendant  and  appellant  above  named  and 
makes  and  presents  the  following  assignment  of  errors,  of 
and  concerning  the  proceedings  had  and  taken  against  said 
defendant,  before  the  above  named  commissioner,  on  the  — — 
and  day  of ,  in  the  year ,  at  ,  and  there- 
upon defendant  and  appellant  shows  as  follows : 


DEPORTATION    OF    CHINESE.  433 

First.  The  said  commissioner  was  and  is  without  power, 
authority,  or  jurisdiction  to  hear  and  determine  the  said 
proceedings,  involving  the  right  of  the  appellant  herein  to 
be  and  remain  in  the  United  States,  and  that  said  commis- 
sioner had  not  power  and  authority  to  make,  render,  and  en- 
ter the  judgment  and  order  of  deportation  against  the  de- 
fendant herein,  and  that  said  judgment  and  order  are  null 
and  void. 

Second.  That  the  Acts  of  Congress,  known  as  the  "  Chi- 
nese Restriction  and  Exclusion  Acts,"  of  May  6th,  1882, 
July  15,  1884,  September  13th,  1888,  October  ist,  1888,  May 
5th,  1892,  and  November  3d,  1893,  in  so  far  as  they  vest  in 
a  United  States  Commissioner  any  power  or  jurisdiction  to 
hear  and  determine  the  right  of  a  Chinese  person,  or  a  per- 
son of  Chinese  descent,  to  be  and  remain  in  the  United  States 
are  unconstitutional  and  void. 

Third.  That  said  Acts  of  Congress,  in  so  far  as  they  vest 
in  a  United  States  Commissioner  the  power  and  jurisdiction 
to  hear  or  determine  by  summary  proceedings,  the  right  of 
a  Chinese  person,  or  a  person  of  Chinese  descent,  who  is  a 
natural  born  citizen  and  inhabitant  of  the  United  States,  and 
claims  and  asserts  and  sets  up  such  citizenship  as  a- matter  of 
right  under  the  constitution  and  laws  of  the  United  States; 
or  in  so  far  as  said  Acts  of  Congress  purport  to  or  do  confer 
upon  such  commissioner,  the  power  or  jurisdiction  to  deport 
or  send  out  from  the  territory  or  jurisdiction  of  the  United 
States,  such  person  by  any  order  or  writ  of  deportation  or 
other  process  whatever,  are  contrary  to  fundamental  right 
and  natural  justice,  and  are  in  violation  of  the  Constitution 
and  laws  of  the  United  States,  guaranteeing  the  civil  rights 
of  citizens  and  persons  within  the  jurisdiction  thereof,  and 
particularly  are  in  violation  of  Sections  9  and  10  of  Article 
I.,  and  Sections  i  and  2  of  Article  III.,  of  the  Constitution  of 
the  United  States,  and  of  Articles  V.,  VI.,  and  VIII.  of  the 
amendments  to  the  Constitution  of  the  United  States. 


434  SUITS   AT    LAW. 

Fourth.  The  said  Acts  of  Congress,  in  so  far  as  they 
vest  in  a  United  States  Commissioner,  or  purport  to  or  do 
grant  to  such  commissioner,  the  power  or  jurisdiction  to 
punish  a  Chinese  person,  or  a  person  of  Chinese  descent,  for 
being  unlawfully  in  the  United  States,  by  summary  proceed- 
ings, in  which  proceedings  such  person  avers  bona  Me,  and 
sets  up  in  good  faith,  the  fact  and  claim  that  he  is  a  natural 
born  citizen  of  the  United  States,  and  entitled  to  .the  rights 
of  such  citizen  under  its  Constitution  and  laws,  are  uncon- 
stitutional and  void  and  contrary  to  the  provisions  and  arti- 
cles of  the  Constitution  of  the  United  States  above  enumer- 
ated, and  are  in  violation  of  the  civil  rights  guaranteed  by 
the  Constitution  and  laws  of  the  United  States  to  citizens 
thereof  residing  therein. 

Fifth.  The  said  Acts  of  Congress  in  so  far  as  they  vest 
in  a  United  States  Commissioner  the  power  to  hear  and  de- 
termine by  summary  proceedings  the  right  of  a  Chinese  per- 
son, or  a  person  of  Chinese  descent,  claiming  in  good  faith 
and  in  point  of  fact  to  be  a  natural  born  citizen  of  the  United 
States,  to  be  and  remain  in  the  United  States,  and  to  con- 
vict such  Chinese  person,  or  person  of  Chinese  descent,  of 
being  not  lawfully  entitled  to  remain  in  the  United  States, 
and  to  sentence  such  Chinese  person,  or  person  of  Chinese 
descent,  to  imprisonment,  detention,  or  restraint,  or  to  de- 
portation, or  to  both,  are  unconstitutional  and  void,  and  vio- 
late the  provisions  of  the  Constitution  and  laws  of  the  United 
States  above  referred  to. 

Sixth.  The  said  Acts  of  Congress,  in  so  far  as  they  vest 
in  a  United  States  Commissioner,  or  grant  to  a  United  States 
Commissioner  the  power,  authority  or  jurisdiction  to  hear 
and  determine  the  right  of  a  Chinese  person,  or  a  person  of 
Chinese  descent,  to  be  and  remain  in  the  United  States  by 
summary  proceedings,  in  which  such  person  sets  up  and  claims 
under  the  constitutional  laws  of  the  United  States,  to  be  a 
natural  born  citizen  of  the  United  States,  and  entitled  as  suth 


DEPORTATION    OF    CHINESE.  435 

to  reside  and  remain  therein,  and  in  so  far  as  saia  Acts  of 
Congress  purport  to  authorize  said  commissioner  to  adjudge 
such  Chinese  person,  or  person  of  Chinese  descent,  to  be  not 
lawfully  entitled  to  remain  in  the  United  States,  and  to  order 
such  Chinese  person,  or  person  of  Chinese  descent,  to  be  im- 
prisoned or  to  be  deported  or  both,  are  unconstitutional  and( 
void,  and  violate  articles  and  provisions  and  sections  of  the 
Constitution  and  laws  of  the  United  States  above  enumerated 
and  referred  to. 

Seventh.  That  the  said  commissioner  erred  in  overruling 
and  denying  the  objection  of  the  defendant  herein,  duly  made 
at  the  inception  of  said  proceedings,  to  the  insufficiency  of  the 
complaint  filed  herein,  as  the  basis  of  said  proceedings,  in  that 
said  complaint  and  the  facts  therein  alleged  were  laid  against 
a  fictitious  person,  and  against  some  person  under  a  fictitious 
name,  and  not  against  the  defendant  herein,  and  that  there- 
fore said  complaint  was  and  is  null  and  void. 

Eighth.  That  the  said  commissioner  erred  in  overruling 
and  denying  the  objection  of  the  defendant  herein,  duly  made 
at  the  inception  of  said  proceedings,  to  the  insufficiency  of 
the  warrant  of  arrest  in  this  proceeding,  in  that  the  same  was 
issued  against  a  fictitious  person,  and  against  some  person 
under  a  fictitious  name,  and  not  against  the  defendant  herein, 
and  that  therefore  the  said  warrant  was  and  is  null  and  void. 

Ninth.  The  said  commissioner  erred  in  overruling  and 
denying  the  objection  of  the  defendant  and  appellant  herein, 
taken  prior  to  any  proceedings  before  said  commissioner,  that 
the  said  complaint  and  warrant,  and  the  filing  and.  issuance 
thereof,  had  not  been  previously  approved  in  writing  by  the 
United  States  attorney  for  the  northern  district  of  California, 
as  required  by  law,  and  that  therefore  the  said  complaint  and 
warrant  were  insufficient,  and  not  in  the  form  of  law,  and  null 
and  void. 

Tenth.  The  said  commissioner  erred  in  refusing  to  grant 
and  allow  the  continuance  asked  for  by  defendant,  upon  the 


436  SUITS    AT    LAW. 

affidavit  of  counsel  duly  filed  herein,  prior  to  any  proceedings 
taken  or  testimony  heard  by  said  commissioner,  and  the  rul- 
ing of  said  commissioner  in  this  respect  is  here  assigned  as 
error. 

Eleventh.  The  said  commissioner  erred  in  refusing  to 
grant  the  continuance  asked  for  by  counsel  for  the  defendant 
in  order  to  obtain  evidence  of  the  citizenship  and  nativity  of 
said  defendant,  as  appears  on  page  44  of  the  transcript  of 
proceedings  on  file  herein,  and  which  ruling  of  said  commis- 
sioner, defendant  now  assigns  as  error. 

Twelfth.  The  said  commissioner  erred  in  decisions  of  ques- 
tions of  law  arising  upon  the  evidence  heard  and  taken  before 
said  commissioner  herein,  and  erred  in  decisions  of  law  aris- 
ing upon  the  proceedings  had  and  taken  against  said  defend- 
ant affecting  the  material  rights  and  interests  of  said  defend- 
ant, as  involved  in  said  proceedings,  to  which  said  decisions 
and  rulings  of  said  commissioner  the  said  defendant  duly  ex- 
cepted, and  here  assigns  as  error. 

Thirteenth.  The  finding  of  said  commissioner  that  said  de- 
fendant, Lee  Afe  Yin,  is  a  Chinese  manual  laborer,  and  was 
born  in  and  is  a  subject  of  the  empire  of  China,  is  contrary  to 
and  not  justified  by  the  evidence  herein;  in  this,  that  there  is 
no  evidence  that  the  defendant  is  a  Chinese  person ;  that  there 
is  no  evidence  that  the  said  defendant  is  a  skilled  manual 
laborer;  that  there  is  no  evidence  herein  that  said  defendant 
is  an  unskilled  manual  laborer ;  that  there  is  no  evidence  here- 
in that  said  defendant  is  or  was  employed  in  mining,  fishing, 
huckstering,  or  peddling;  that  there  is  no  evidence  that  said 
defendant  is  or  was  a  laundress;  that  there  is  no  evidence 
herein  that  said  defendant  was  engaged  in  taking  and  drying 
or  otherwise  preserving  shellfish  for  home  consumption  or 
exportation;  that  the  evidence  herein  clearly  shows  that  the 
said  defendant  was  born  in  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  United  States  of  America,  and  that 
she  is  a  citizen  of  the  United  States  of  America,  and  that  any 


•        DEPORTATION    OF    CHINESE.  437 

finding  to  the  contrary  by  said  commissioner  upon  said  pro- 
ceedings is  unwarranted  in  point  of  fact,  and  unauthorized 
and  unjustified  in  point  of  law. 

Fourteenth.  That  the  judgment  and  order  of  deportation 
of  said  commissioner  herein  made  are  contrary  to  and  not  jus- 
tified by  the  evidence,  for  the  same  reasons  as  are  specified  in 
the  last  assignment  of  error  herein. 

Fifteenth.  That  said  judgment  and  order  of  deportation 
made  and  entered  herein  by  said  commissioner  are  contrary  to 
law. 

Sixteenth.  That  said  judgment  and  order  of  deportation 
made  and  entered  herein  are  in  violation  of  the  provisions  of 
Sections  i  and  2  of  Article  III.  of  the  Constitution  of  the 
United  States  and  of  Articles  V.  and  VI.  of  the  amendments 
thereof. 

Seventeenth.  That  for  the  reasons  herein  stated  the  said 
commissioner  erred  in  making  and  entering  judgment  and 
order  of  deportation  herein. 

Eighteenth.  That  for  the  reasons  herein  stated  the  said 
commissioner  erred  in  not  making  and  entering  a  judgment 
and  order  of  dismissal  herein. 

Wherefore,  defendant  and  appellant  prays: 

First.  That  said  judgment  and  order  of  deportation  of  said 
commissioner  be  vacated  and  set  aside,  and  that  said  defend- 
ant and  appellant  be  hence  dismissed. 

Second.  That  said  matter  and  proceedings  against  said  de- 
fendant and  appellant  be  referred  to  said  commissioner,  or  to 
a  master  in  chancery  of  this  court,  for  the  purpose  of  taking 
further  evidence  on  behalf  of  said  defendant  and  appellant. 

Third.  That  said  matter  and  charge  against  said  defend- 
ant and  appellant  be  heard  and  tried  de  novo  in  this  the  dis- 
trict court  of  the  United  States  for  the  northern  district  of 
California. 


438  SUITS    AT    LAW.  • 

Fourth.    That  said  defendant  and  appellant  have  such  other 
and  further  or  different  relief  as  may  be  proper. 

Dated .  Respectfully  submitted, 

R.  Y., 
Attorney  for  Defendant  and  Appellant. 


No.  321. 

Citation  on  Appeal  from  Commissioner. 
Before  Hon.  E.  H.,  United  States  Commissioner. 

The  United  States  of  America, 

Plaintiffs  and  Respondent, 

vs. 

Le?    Ah    Yin,    Defendant   and| 

Appellant. 

To  the  United  States  of  America,  Plaintiffs,  and  to  Hon.  J.  H., 

United  States  Attorney  for  the  District  of  , 

Greeting: 

You  are  hereby  cited  and  admonished  to  be  and  appear  at 
and  before  the  district  court  of  the  United   States   for  the 

district  of  ,  on  the  day  of  ,   nineteen 

hundred  and ,  pursuant  to  an  appeal  filed  in  my  office  in 

the  above  entitled  matter,  wherein  Lee  Ah  Yin  is  appellant 
and  the  United  States  is  respondent,  to  show  cause,  if  any 
there  may  be,  why  the  order  mentioned  in  said  appeal  should 
not  be  corrected,  and  speedy  justice  should  not  be  done  to  the 
appellant  in  that  behalf. 

Witness,  the  Hon.  G.  R.,  judge  of  the  district  court  of  the 

United  States  for  the district  of ,  this day  of 

,  in  the  year  of  our  Lord  ninteen  hundred  and  . 

E.  H., 
I  United  States  Commissioner. 

Due  service  by  copy  of  the  within  citation  is  hereby  admitted 

this day  of .  J.  H., 

United  States  Attorney. 


DEPORTATION    OF    CHINESE.  439 

No.  322. 

United  States  Commissioner's  Transcript  o£  Proceedings  in 

Criminal  Case. 

United  States  of  America, 

Northern  District  of  Ohio,  Eastern  Division,  ss. 

Before  me,  Frederick  P.  Walther,  a  United  States  Com- 
missioner for  said  district,  complaint  and  affidavit  was  made 
on  this  30th  day  of  April.  1914,  by  J.  A.  Fluckey,  Imm.  Insp,, 
charging  in  substance  that  on  or  about  the  30th  day  of  April, 
1914,  at  Cleveland,  in  said  district,  the  defendant.  Lew  Loy, 
in  violation  of  Chinese  Exclusion  Act  of  the  revised  statutes 
of  the  United  States  Penal  Code,  was  a  Chinese  person  unlaw- 
fully in  the  United  States. 

On  April  30^  1914,  issued  warrant  to  Chas.  W.  Lapp, 
U.  S.  Marshal. 

On  June  22,  1914,  warrant  returned,  indorsed  as  follows: 
"Received  this  warrant  on  the  30th  day  of  April,  1914,  at 
Cleveland,  Ohio,  and  executed  the  same  by  arresting  the  within 
named  Lew  Loy,  at  Cleveland,  Ohio,  on  the  30th  day  of  April, 
1914,  and  have  his  body  now  in  court,  as  within  I  am  com- 
manded. Chas.  W.  Lapp, 

U.  S.  Marshal,  Northern  District  of  Ohio. 
By  W.  F.  Gauchat,  Deputy." 

On  May  21,  1914,  issued  subpoena  for  the  following  wit- 
nesses in  behalf  of  the  United  States :  Frank  M.  Potter,  John 
Harris,  William  Graham,  N.  J.  Rich,  Franklin  J,  Zavesky, 
G.  F.  Wilson. 

On  May  22,  1914,  said  subpoena  was  returned,  indorsed 
as  follows:  "Received  this  writ  May  22,  1914,  and  on  the 
same  day,  served  the  same  on  the  within  named  Frank  M. 
Potter,  John  Harris,  William  Graham,  N.  J.  Rich,  Franklin 
J.  Zavesky,  and  G.  F.  Wilson,  by  leaving  a  certified  copy 
thereof  with  each  of  them  personally. 

Chas.  W.  Lapp, 
U.  S.  Marshal,  Northern  District  of  Ohio, 
By  Al.  P.  Kelley,  Deputy." 


440  SUITS   AT    LAW. 

On  April  30,  1914,  defendant  was  brought  before  me,  the 

said  United  States  Commissioner  at  my  office,  in  the in 

said  district,  by  W.  F.  Gauchat,  Deputy  U.  S.  Marshal ;  and 
the  complaint  was  then  and  there  fully  read  and  explained  to 
the  said  defendant,  who  thereupon,  for  plea,  said  he  is  "not 
guilty"  as  charged  in  said  complaint. 

J.  B.  Waterworth  appeared  for  the  United  States. 

Stewart  and  Spieth  appeared  for  defendant. 

And  thereupon,  on  motion  to  that  effect  made  by  the  plain- 
tiff and  defendant,  the  hearing  was  continued  until  the  6th  day 
of  May,  1914,  at  10  o'clock  a.  m.,  and  the  defendant  was  re- 
quired to  give  bond  in  the  sum  of  two  thousand  dollars  to 
personally  appear  before  me  at  the  said  time  at  my  office  in  the 

,  in  the  city  of  Cleveland,  and  district  aforesaid,  and  from 

time  to  time  thereafter  to  which  the  case  may  be  continued, 
which  he  did  do,  with  J.  W.  Stewart  as  surety ;  May  6,  1914, 
case  continued  to  May  22,  1914;  May  22,  1914,  case  continued 
to  June  22,  1914. 

On  June  22,  1914,  at  9:30  o'clock  a.  m.,  pursuant  to  the  con- 
tinuance of  May  22,  1914,  defendant  appeared  before  me,  the 
said  commissioner,  at  my  office  in  said  district.  The  United 
States  was  represented  by  C.  R.  Alburn,  U.  S.  attorney,  and 
the  defendant,  being  present  in  person,  was  also  represented 
by  Stewart  and  Spieth,  his  attorneys;  and  the  following  wit- 
nesses were  sworn  and  examined  on  the  part  of  the  United 
States :  J.  A.  Fluckey. 

On  June  22,  1914,  from  the  evidence  of  the  witnesses,  it 
appearing  to  me,  the  said  commissioner,  that  the  laws  of  the 
United  States  have  been  violated,  as  charged  in  the  complaint, 
and  that  there  is  probable  cause  shown  to  believe  the  defendant 
guilty  of  the  alleged  offense,  it  was  ordered  that  he  be  deported 
to  China,  and  that  he  give  bond  in  the  sum  of  two  thousand 
dollars  for  his  appearance  before  the  United  States  District 
Court,  in  and  for  the  Northern  District  of  Ohio,  Eastern  Divi- 
sion, pending  and  to  abide  his  appeal  to  said  court,  and  from 


DEPORTATION    OF    CHINESE.  441 

time  to  time  thereafter  to  which  the  case  may  be  continued, 
to  answer  said  charge,  and  that  in  default  of  same  he  stand 
committed. 

And  thereupon  on  the  22d  day  of  June,  1914,  the  said  de- 
fendant gave  bond  in  the  sum  of  two  thousand  dollars  for  his 
appearance  at  the  said  time  and  place,  with  J.  W.  Stewart  as 
surety  thereon. 

June  22,  1914,  defendant  gave  oral  notice,  and  filed  written 
application  and  petition  for  appeal  to  the  United  States  Dis- 
trict Court  for  said  district : 

All  services  in  Chinese  depHDrtation  case $  5.00 

Marshal's  fees  on  warrant $7.26 

On  subpoena   3.60       10,86 


$15.86 


No.  322a. 

Endorsement  and  Certificate. 

No.  8918  U.  S.  Commissioner's  Transcript;  The  United 
States  of  America  vs.  Lew  Loy;  Transcript  of  Proceedings, 
before  Frederick  P.  Walther,  United  States  Commissioner  for 
the  Northern  District  of  Ohio,  Eastern  Division;  Certificate. 
The  United  States  of  America,  Northern  District  of  Ohio,  ss., 
Eastern  Division.  I,  the  undersigned,  a  United  States  com- 
missioner for  said  district,  do  hereby  certify  that  the  within  is 
a  full  and  true  transcript  of  the  proceedings  had  by  and  before 
me  in  the  above  named  cause,  and  costs  therein  afS  recorded  in 
my  docket  2,  page  151 ;  and  that  the  papers  numbered  1  to  7, 
inclusive,  accompanying  this  transcript,  are  the  original  papers' 
in  said  cause;  all  of  which  are  herewith  transmitted  into  the 
district  court  of  the  United  States,  within  and  for  said  district. 
Witness  my  hand  and  seal  on  the  22d  day  of  June,  1914 
[Seal  of  Commissioner.]  Frederick  P.  Walther, 

U.  S.  Commissioner  as  aforesaid. 


442  SUITS  AT    LAW. 

No.  323. 

(Another  form.) 

Certificate  to  Record  by  U.  S.  Commissioner. 

United  States  of  America, 

District  of ,  ss. 


I  hereby  certify  that  attached  hereto  are  the  following  origi- 
Fxal  papers  filed  in  the  case  entitled  in  the  caption  hereof,  viz. : 
Complaint,  warrant  of  arrest,  affidavits  for  continuance  filed 

"ihe day  of and ,  respectively,  notice  of  appeal 

and  order  allowing  the  same,  citation  on  appeal  to  the  United 
States  attorney,  stipulation  relative  to  filing  upon  appeal  the 
original  papers  in  the  cause,  stipulation  relative  to  time  of 
transcribing  the  papers  on  appeal ;  also,  a  full,  true  and  correct 
transcript  of  the  proceedings  and  testimony  had  and  taken  be- 
fore me  upon  the  hearing  thereof ;  also,  a  full,  true  and  correct 
copy  of  the  findings,  judgment  and  order  of  deportation. 

Witness  my  hand  at  my  office  this day  of . 

E.  H., 

United  States  Commissioner  for  the 

District  of ,  at . 


No.  324. 

Order  Affirming  U.  S.  Commissioner. 

Entered  June  15,  1915,  by  Judge  Clarke. 
This  day  came  the  United  States  attorney,  on  behalf  of  the 
United  States,  and  came  also  the  defendant,  Lew  Loy,  accom- 
panied by  counsel,  at  the  bar  of  court,  and  this  case  came  on  to 
be  heard  upon  the  appeal  of  said  defendant,  Lew  Loy,  from 
the  decision  of  Frederick  P.  W'alther,  United  States  commis- 
sioner, ordering  the  said  defendant,  Lew  Loy,  to  be  deported 
from  the  United  States  to  the  country  from  whence  he  came, 
to-wit,  the  republic  of  China. 


DEPORTATION   OF    CHINESE.  443 

Testimony  of  the  parties  and  arguments  of  counsel  were  con- 
cluded and  the  case  submitted  to  the  court  for  consideration 
and  decision. 

Wherefore,  after  due  consideration  had  thereon,  the  court 
finds  that  said  defendant  is  a  person  of  Chinese  descent  and  is 
unlawfully  within  the  United  States,  whereupon  it  is  ordered 
by  the  court  that  the  decision  of  the  United  States  commis- 
sioner be  and  the  same  is  hereby  sustained  and  said  order  of 
deportation  be  and  the  same  is  hereby  affirmed,  and  that  the, 
defendant  forthwith  be  deported  to  the  republic  of  China  in 
accordance  with  the  prior  order  of  deportation  of  said  United 
States  commissioner,  and  that  the  costs  of  these  proceedings, 
taxed  at  $ ,  be  paid  by  said  defendant. 

It  is  further  ordered  that  the  United  States  marshal  of  this 
district  carry  into  effect  the  provisions  of  this  order  in  regard 
to  such  deportation  in  conformity  with  the  regulations  of  the 
Bureau  of  Immigration  of  the  United  States.  To  which  ruling 
and  judgment  of  the  court  the  defendant  then  and  there  ex- 
cepted and  in  open  court  gave  notice  of  his  intention  to  appeal 
to  the  United  States  Circuit  Court  of  Appeals  for  the  Sixth 
Circuit,  and  it  is  thereupon  ordered  that  said  defendant  enter 
into  a  recognizance  in  the  sum  of  two  thousand  dollars 
($2,000)  to  the  approval  of  the  clerk  of  this  court  for  his  apy- 
pearance  in  this  court  from  day  to  day  during  the  pendency  of 
said  api>eal  in  answer  to  the  charge  therein  pending  against 
him,  and  thereupon  came  the  defendant.  Lew  Loy,  as  principal, 
and  Jas.  W.  Stewart,  as  surety,  and  entered  into  the  required 
recognizance. 


No.  325. 

Decree  Affirming  or  Reversing  Order  of  Deportation  (1). 

{Caption.l 

In  this  case,  the  appeal  from  the  order  of  deportation  made 
by  the  United  States  commissioner,  E.  H.,  having  been  here- 
tofore submitted  to  the  court  for  consideration  and  decision^ 


444  SUITS   AT   LAW. 

now,  after  due  consideration  had  thereon,  it  is  by  the  court 
ordered  that  said  order  of  deportation  be,  and  the  same  is 
hereby,  affirmed  [or,  reversed,  and  it  is  further  ordered  that 
the  defendant  be  discharged]. 

(1)  Where  a  person  has  been  ordered  to  be  deported  in  one  dis- 
trict, can  not  be  tried  again  m  another  district.  U.  S.  v.  Luey  Guey 
Auck,  115  Fed.  252. 

It  is  entirely  for  the  commissioner  to  determine  the  credibility  of 
the  witnesses  and  the  sufficiency  and  weight  of  their  testimony,  and 
it  is  uniformly  held  that  his  finding  will  not  be  disturbed  unless  clearly 
against  the  weight  of  evidence.  Quock  Ting  v.  U.  S.,  140  U.  S.  417, 
11  Sup.  Ct.  733,  35  L.  Ed.  501;  Elwood  v.  Telegraph  Co.,  45  N.  Y. 
549,  6  Am.  Rep.  140;  Kavanaugh  v.  Wilson,  70  N.  Y.  177;  Gee  Fook 
Sing  V.  U.  S.,  1  C.  C.  A.  211,  49  Fed.  147;  In  re  Jew  Wong  Loy  (D. 
C),  91  Fed.  240;  U.  S.  v.  Chung  Fung  Son  (D.  C),  63  Fed.  261;  Lee 
Sing  Far  v.  U.  S.,  35  C.  C.  A.  327,  94  Fed.  834;  In  re  Louie  You  (D.  C), 
97  Fed.  580. 


No.  326. 

Order  to  Remand  a  Chinese  Person  on  Petition  for  Writ  of 
Habeas  Corpus. 

In  the  District  Coart  of  the  United  States,  District  of 


In  the  Matter  of  Lee  Ah  Chin,  ) 
on  Habeas  Corpiis.  C 

This  matter  having-  been  regularly  brought  on  for  hearing 
upon  the  report  of  the  special  referee  and  examiner,  it  is  by 
the  court  now  here  ordered  and  adjudged  : 

That  said  report  be,  and  the  same  is  hereby  confirmed,  and 
it  is  adjudged  and  found  that  Lee  Ah  Chin,  the  person  in  whose 
behalf  the  writ  of  habeas  corpus  herein  was  issued,  came  from 
China  by  the  steamship  Barton,  and  is  a  Chinese  person  for- 
bidden by  law  to  land  within  the  United  States,  and  has  no 
right  to  be  or  remain  therein. 


DEPORTATION    OF    CHINESE.  A4S 

It  is  therefore  ordered  that  the  said  above  named  person  be 

remanded  by  the  United  States  marshal  for  the district 

of ,  to  the  custody  whence  he  was  taken,  to-wit :  On  board 

the  said  steamship  to  the  custody  of  the  master  thereof,  who- 
ever he  may  be  at  the  time  of  the  order  of  remand,  or  to  place 
the  said  above  named  person  in  the  hands  and  charge  of  any 
party  on  board  said  steamship  for  the  time  being  representing 
the  master,  or  then  in  charge  of  said  steamship  in  the  absence 
of  the  master,  or  for  the  time  exercising  control  or  authority 
thereon;  this  order  to  be  executed  as  to  said  steamship,  whether 
still  in  port  not  having  departed  therefrom,  or  having  departed 
and  returned  since  the  proceedings  herein  were  instituted.  And 
in  case  said  steamship  has  departed  and  not  returned,  or  for 
any  other  reason  the  said  above  named  person  can  not  be  placed 
on  said  steamship,  that  the  said  marshal  place  him  upon  any 
other  vessel  available  for  the  purpose,  for  the  purpose  of  de- 
porting him  out  of  the  United  States  and  transporting  him  to 
the  port  of  Hong  Kong  whence  he  came.  And  for  the  pur- 
pose of  carrying  this  order  into  effect,  it  is  further  ordered  that 
the  said  marshal  take  the  said  named  person  into  custody  and 
him  safely  keep  till  said  order  shall  be  fully  executed. 

Entered  this day  of ,  190—.  G.  R.. 

Judge. 

Office  of  the  United  States  Marshal, 
District  of . 

I  hereby  return  that  I  executed  the  within  order  of  remand 

on  the day  of ,  190 — ,  by  placing  the  within  named 

Lee  Ah  Chin  in  the  custody  of  G.  R.,  from  whose  custody  he 
was  taken  under  and  by  virtue  of  a  writ  of  habeas  corpus  here- 
tofore issued  by  this  honorable  court  in  the  within  entitled 
matter,  as  I  am  commanded  to  do  in  said  within  order  of  re- 
mand. S.  M.,  United  States  Marshal. 

Dated  at , day  of ,  190 — . 


446  SUITS    AT    LAW. 

No.  327. 

Writ  of  Deportation  of  Chinese  (1). 

United  States  of  America. 

In  the  District  Court  of  the  United  States  for District 

of . 


\ 


United  States  of  Atnerica. 

vs.  ^  No. .  Writ  of  Deportation. 

Wah  Jim. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the  United  States  for  the District  of ,  Greet- 
ing: 

Whereas,  at  the  July  term  of  said  court,  held  at  the  city  of 

,  in  said  district,  on  the day  of ,  A.  D,  , 

Wah  Jim  was  convicted  of  being  a  Chinese  laborer  unlawfully 
within  the  United  States  without  a  certificate  of  registration, 
committed  within  the  jurisdiction  of  said  court,  contrary  to  the 
form  of  the  statute  of  the  United  States  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  United 
States. 

And  whereas,  on  the day  of ,  A.  D. ,  being  a 

day  in  the  said  term  of  said  court,  the  said  Wah  Jim  was,  for 
said  offense  of  which  he  stands  convicted  as  aforesaid,  by  the 
judgment  of  said  court,  ordered  to  be  deported  to  the  empire 
of  China,  the  country  from  which  he  came. 

And  this  is  to  command  you,  the  said  marshal,  to  take,  keep 
and  safely  deport  the  said  Wah  Jim  to  the  republic  of  China  by 
the  usual  route  of  travel  without  unnecessary  delay,  and  make 
due  return  of  your  service  of  this  writ.  Herein  fail  not  at 
your  peril. 

Witness,  the  Hon.  C.  H.,  judge  of  the  said  district  court, 

and  the  seal  thereof,  at  the  city  of ,  the  • day  of , 

A.  D. .  R.  M., 

[Seal.]  Clerk. 


DEPORTATION    OF    CHINESE.  447 

(1)  Usually  a  certified  copy  of  the  judgment  is  used  as  a  process 
upon  which  the  removal  is  made.  Sec.  13  of  the  act  of  September  13, 
1888,  25  Stat.  L.  476. 

In  some  districts,  however,  the  foregoing  form  of  writ  has  been 
used. 


No.  328. 

Warrant  for  Arrest  of  Alien  (1)  under  Immigration  Act  of 

1907. 

United  States  of  America, 

U.  S.  Department  of  Labor, 

Washington. 

To  J.  A.  Fluckey,  Inspector  in  Charge,  Cleveland,  Ohio,  or  to 
any  Immigrant  Inspector  in  the  Service  of  the  United 
States : 

Whereas,  from  evidence  submitted  to  me,  it  appears  that  the 
alien,  Chan  Foo  Lin,  alias  Frank  Chan,  who  landed  at  an 
unknown  port  on  or  subsequent  to  the  1st  day  of  July,  1911, 
has  been  found  in  the  United  States  in  violation  of  the  act 
of  Congress  approved  February  20,  1907,  amended  by  the 
act  approved  March  26,  1910,  for  the  following  among  other 
reasons : 

That  the  said  alien  is  unlawfully  within  the  United  States 
in  that  he  has  been  found  therein  in  violation  of  the  Chinese 
exclusion  laws,  and  is,  therefore,  subject  to  deportation  under 
the  provisions  of  Section  21  of  the  above  mentioned  act,  and 
that  he  entered  in  violation  of  Section  36  of  the  above  men- 
tioned act,  thereby  entering  without  inspection. 

I,  Louis  F.  Post,  acting  secretary  of  labor,  by  virtue  of  the 
power  and  authority  vested  in  me  by  the  laws  of  the  United 
States,  do  hereby  command  you  to  take  into  custody  the  said 
alien  and  grant  him  a  hearing  to  enable  him  to  show  cause  why 
he  should  not  be  deported  in  conformity  with  law. 

The  expenses  of  detention  hereunder,  if  necessary,  are  au- 
thorized, payable  from  the  appropriation  "Expenses  of  Regu- 
lating Immigration,  1914."     Pending  disposition  of  his  case, 


448  SUITS    AT    LAW. 

the  alien  may  be  released  from  custody  upon  furnishing  satis- 
factory bond  in  the  sum  of  $2,000. 

For  so  doing  this  shall  be  your  sufficient  warrant. 

Witness  my  hand  and  seal  this  19th  day  of  June,  1914. 
(Signed)  Louis  F.  Post, 

[Seal.]  Acting  Secretary  of  Labor. 

(1)  Although  the  immigration  act  of  1907  was  repealed  by  the 
act  of  February  5,  1917,  yet  the  provisions  respecting  deportation  of 
aliens  are  retained  in  their  essentials  as  they  were  in  the  earlier  act; 
section  19  of  the  later  act  provides  for  taking  into  custody  of  men- 
tioned persons  and  their  deportation  upon  warrant  of  the  secretary 
of  labor,  and  section  25  confers  full  jurisdiction  of  proceedings  upon 
the  district  court.  Apparently  'the  procedure  is  the  same  as  under 
the  earlier  act  of  1907,  namely,  arrest,  hearing  and  order  of  deporta- 
tion by  the  secretary  of  labor,  and  application  for  writ  of  habeas 
corpus  to  the  district  court,  as  seen  in  Ex  parts  Hill,  245  Fed.  687, 
and  also  in  Ex  parte  Mitchell,  256  Fed.  229.  In  the  latter  case  it  was 
held  that  "a  finding  by  immigration  officers  or  the  secretary  of  labor 
that  an  alien  is  subject  to  deportation,  is  not  conclusive,  and  may  be 
reviewed  on  habeas  corpus,  and  the  findings  of  fact  by  the  secretary 
of  labor  are  subject  to  the  decision  of  the  court  as  to  whether  they 
are  sustained  by  the  evidence,  or  whether  they  support  the  order  of 
deportation." 

Accordingly  some  forms  of  the  procedure  prevailing  under  the 
act  of  1907  are  herewith  submitted. 


No.  329. 

Order  of  Deportation  of  Alien. 

Washington,  D.  C,  November  2,  1914. 
Immigration  Service,  Cleveland,  Ohio: 

Hearing  having  been  granted  the  following  named  alien, 
Chan  Foo  Lin,  who  has  been  found  within  the  United  States 
in  violation  of  Section  6,  Chinese  exclusion  act  of  May  5,  1892, 
as  amended  by  the  act  of  November  3,  1893,  being  a  Chinese 
laborer  not  in  jwssession  of  a  certificate  of  residence,  and  who 
entered  the  United  States  in  violation  of  Section  7,  Chinese 
exclusion  act  of  September  13,  1888,  and  Rule  1,  Chinese  rules, 
you  are  authorized  to  convey  the  following  named  alien,  Chan 


DEPORTATION   OF   CHINESE.  449 

Foo  Lin,  to  the  port  of  New  York  for  deportation,  expenses 
being  payable  from  the  appropriation  "Expenses  of  Regulating 
Immigration."  Authority  granted  for  employment  of  attend- 
ant, if  necessary,  at  compensation  of  one  dollar  and  expenses 
both  ways.     Join  Weiss  party. 

J.  B.  Densmore, 

Acting  Secretary. 

No.  330. 

Application  for  Writ  of  Habeas  Corpus. 
Filed  Nov.  5,  1914. 
Now  comes  Chan  Foo  Lin,  alias  Frank  Chan,  and  respect- 
fully represents  to  this  honorable  court  that  he  is  unlawfully 
deprived  of  his  liberty  by  J.  Arthur  Fluckey,  inspector  in 
charge  of  the  immigration  department  of  Cleveland  district; 
that  said  imprisonment  and  detention  are  without  any  legal 
authority  whatsoever. 

Wherefore  your  petitioner  prays  that  a  writ  of  habeas  corpus 
may  be  issued  to  the  said  J.  Arthur  Fluckey,  and  that  your 
petitioner  may  be  discharged  from  such  illegal  restraint. 

J,  A.  Cline  and 
E,  P.  Strong, 
Attorneys  for  Petitioner. 

The  State  of  Ohio,  Cuyahoga  County,  ss. 

Chan  Foo  Lin,  being  first  duly  sworn,  says  that  the  state- 
ments made  and  allegations  contained  in  the  foregoing  appli- 
cation are  true.  Chan  Foo  Lin. 

Sworn  to  before  me  and  subscribed  in  my  presence  this  5th 
day  of  November,  1914.  E.  P.  Strong, 

[Seal.']  Notary  Public. 


No.  331. 

Order  Allowing  Writ  of  Habeas  Corpus. 

This  day  came  J.  Arthur  Fluckey,  inspector  in  charge  of  the 
immigration  department  of  Cleveland,  Ohio,  district,  with  the 
petitioner,  Chan  Foo  Lin,  alias  Frank  Chan,  at  the  bar  of  court. 


450  SUITS    AT    LAW. 

and  the  application  for  writ  of  habeas  corpus  having  been  duly 
considered,  it  is  ordered  by  the  court  that  said  application  be, 
and  the  same  is  hereby  allowed,  and  that  a  writ  issue,  return- 
able on  the  7th  day  of  November,  A.  D.  1914,  at  11  o'clock 
in  the  forenoon  of  said  day. 


No.  331a. 

Demurrer  to  Petition  for  Writ  of  Habeas  Corpus. 
(Venue.) 

In  the  Matter  of  Wong  Quen  Luck,  on  Habeas  Corpus. 
Now  comes  the  respondent,  Samuel  W.  Backus,  commis- 
sioner of  immigration  at  the  port  of  San  Francisco,  in  the  state 
and  northern  district  of  California,  and  demurs  to  the  petition 
for  a  writ  of  habeas  corpus  in  the  above  entitled  matter  and 
for  grounds  of  demurrer  alleges : 

1.  That  said  petition  does  not  state  facts  sufficient  to  entitle 
petitioner  to  the  issuance  of  a  writ  of  habeas  corpus  or  any 
relief  thereon. 

2.  That  said  petition  is  insufficient  in  that  the  statements  in 
the  petition  relative  to  the  record  of  the  testimony  taken  on  the 
trial  of  the  applicant,  are  statements  of  conclusions  of  law. 

Wherefore,  respondent  prays  that  the  writ  of  habeas  corpus 
be  denied.  A.  B., 

Attorney  for  Respondent, 


No.  331b. 

Order  Overruling  Demurrer  and  Ordering  Writ  to  Issue. 

(Venue.) 
In  the  Matter  of  Wong  Quen  Luck  on  Habeas  Corpus.    A.  B., 
Attorney  for  Respondent;  C.  D.,  Attorney  for  Petitioner. 

The  demurrer  to  the  petition  for  a  writ  of  habeas  corpus 
herein  is  overruled,  and  said  writ  will  issue  returnable  Novem- 
ber 6,  1915,  at  10  o'clock  a.  m.  M.  T.  Dooling, 

October  26,  1915.  Judge. 


DEPORTATION    OF    CHINESE.  451 

No.  331c. 

Stipulation  that  Immigration  Record  and  Exhibits  be  Filed 

and  Considered  Part  of  the  Petition  for  Writ  of 

Habeas  Corpus. 

(Venue.) 

In  the  Matter  of  Wong  Quen  Luck  on  Habeas  Corpus. 
It  is  hereby  stipulated  and  agreed  by  and  between  J.  P. 
Fallon,  of  counsel  for  applicant  in  the  above  entitled  matter, 
and  Samuel  W.  Backus,  commissioner  of  immigration  at  the 
port  of  San  Francisco,  in  the  state  and  northern  district  of 
California,  and  John  W.  Preston,  United  States  attorney  in 
and  for  the  said  district,  that  the  records  and  exhibits  of 
Samuel  W.  Backus,  commissioner  of  immigration  at  the  port 
of  San  Francisco,  California,  in  the  matter  of  the  application 
of  said  Wong  Quen  Luck  for  admission  into  the  United  States, 
be  filed  and  considered  a  part  of  the  petition  for  a  writ  of 
habeas  corpus  in  said  matter. 

John  W.  Piieston,  U.  S.  Atty., 

Attorney  for  Respondent. 
Joseph  P.  Fallon^ 

Attorney  for  Petitioner. 


No.  332. 

Writ  of  Habeas  Corpus. 

The  United  States  of  America, 
Northern  District  of  Ohio,  Eastern  Division,  ss. 
The  President  of  the  United  States  of  America  to  J.  Arthur 
Fluckey,  Inspector  in  Charge  of  the  Immigration  Depart- 
ment of  Cleveland  District. 
You  are  hereby  commanded  that  the  body  of  Chan  Foo  Lin, 
alias  Frank  Chan,  who  is  by  you  held  and  restrained  of  his 
liberty,  as  it  is  said,  together  with  the  day  and  cause  of  his 
caption  and  detention,  by  whatever  name  the  said  Chan  Foo 
Lin,  alias  Frank  Chan,  may  be  known  or  called,  you  safely 


452  SUITS   AT    LAW. 

have  before  the  Honorable  John  H.  Clarke,  judge  of  the  United 
States  district  court,  within  and  for  the  district  and  division 
aforesaid,  on  the  7th  day  of  November,  A.  D.  1914,  at  11 
o'clock  in  the  forenoon  of  said  day,  at  Cleveland,  to  do  and 
receive  all  and  singular  those  things  which  the  said  judge  shall 
then  and  there  consider  of  you  in  this  behalf,  and  have  you 
then  and  there  this  writ. 

Witness,  the  Honorable  John  H.  Clarke,  judge  of  said  court, 
at  Cleveland,  in  said  district,  this  5th  day  of  November,  A.  D. 
1914,  and  in  the  139th  year  of  the  independence  of  the  United 
States  of  America.  B.  C.  Miller,  Clerk. 

[Seal]  By  R.  C  Dean,  Deputy. 

U.  S.  Marshal's  Return. 
U.  S.  Marshal's  No.  6982. 

The  United  States  of  America,  Northern  District  of  Ohio,  ss. 

Received  this  writ  at  Cleveland,  Ohio,  November  6,  1914, 
and  on  the  same  day,  at  the  same  place,  I  served  the  same  on 
the  within  named  J.  Arthur  Fluckey,  United  States  immigra- 
tion inspector,  by  delivering  to  him  personally  a  true  and  certi- 
fied copy  hereof  with  all  endorsements  thereon. 
Marshal's  fees — 

Service..  $2.00 

Travel. . .     .06 

$2.06  Charles  W.  Lapp,  U.  S.  Marshal. 

By  W.  F.  Gauchat,  Deputy. 


No.  333. 

Return  to  Writ  of  Habeas  Corpus. 

To  the  Honorable  District  Court  of  the  United  States  for  the 
Northern  District  of  Ohio. 

Your  respondent,  J.  A.  Fluckey,  respectfully  represents  to 
the  court  that  he  is  inspector  in  charge  at  Cleveland,  Ohio,  of 


DEPORTATION    OF    CHINESE.  453 

the  immigration  service  of  the  Department  of  Labor  of  the 
United  States,  and  that  as  such  officer  in  his  official  capacity 
he  is  holding  the  petitioner,  Chan  Foo  Lin,  alias  Frank  Chan, 
in  the  above  entitled  case,  under  and  by  virtue  of  a  certain 
warrant  for  the  arrest  of  said  petitioner,  duly  issued  to  said 
J.  A.  Fluckey,  inspector  in  charge,  at  Geveland,  Ohio,  by 
Louis  F.  Post,  acting  secretary  of  labor,  a  copy  of  which  said 
warrant  is  attached  hereto  and  marked  "Exhibit  A" ;  that  said 
petitioner  has  been  granted  a  fair  and  full  hearing  upon  the 
matters  and  things  involved  in  said  warrant  of  arrest  hereto- 
fore referred  to ;  that  said  hearing  was  had  in  accordance  with 
law,  and  in  accordance  with  the  regulations  of  the  secretary  of 
labor,  and  that  thereupon,  upon  full  and  due  consideration 
thereof,  Acting  Secretary  of  Labor  J.  B.  Densmore,  by  virtue 
of  the  authority  vested  in  him  by  law,  instructed  said  J.  A. 
Fluckey  by  wire,  as  more  fully  set  out  in  the  telegram  attached 
hereto  and  marked  "Exhibit  B,"  to  convey  said  Chan  Foo  Lin, 
alias  Frank  Chan,  to  New  York  for  deportation;  that  said 
petitioner  is  now  held  in  the  lawful  custody  of  your  respondent, 
J.  A.  Fluckey,  under  and  by  virtue  of  said  warrant  and  in- 
structions. 

And  your  respondent  further  says  that  he  denies  each  and 
every  allegation  and  averment  in  the  application  of  the  peti- 
tioner filed  herein,  which  is  not  herein  expressly  admitted. 

Wherefore  your  respondent  prays  that  he  may  be  allowed 
to  go  hence  with  the  body  of  the  petitioner. 

J.  A.  Fluckey, 
Inspector  in  Charge. 
State  of  Ohio,  Cuyahoga  County,  ss. 

J.  A.  Fluckey,  being  first  duly  sworn,  deposes  and  says  that 
he  is  the  respondent  in  the  above  entitled  cause,  and  that  the 
facts  and  allegations  contained  in  the  foregoing  return  are  true 
as  he  verily  believes.  J.  A.  Fluckey. 

Sworn  to  before  me  and  subscribed  in  my  presence  this  7th 
day  of  November,  1914.  Cary  R.  Alburn, 

[Seal.]  Notary  Public. 


454  SUITS    AT    LAW. 

No.  334. 

Hearing   on  Writ   of   Habeas    Corpus,   Recognizance   Fixed, 

Order. 

This  day  came  the  United  States  attorney,  on  behalf  of  the 
United  States,  and  also  came  J.  A.  Fltickey,  immigration  in- 
spector, defendant  herein,  with  the  petitioner,  Clian  Foo  Lin, 
alias  Frank  Chan,  in  open  court,  and  thereupon  it  is  ordered 
that  the  hearing  on  petitioner's  application  be,  and  the  same 
is  hereby  assigned  for  Friday,  November  13,  1914,  at  9:30 
o'clock  a.  m. ;  that  during  the  pendency  of  the  above  application 
said  petitioner  enter  into  a  recognizance  in  the  sum  of  two 
thousand  ($2,000)  dollars  for  his  appearance  here  in  this  court 
to  answer  to  the  charge  pending  therein  against  him.  There- 
upon came  the  said  Chan  Foo  Lin,  alias  Frank  Chan,  as  prin- 
cipal, and  Herman  Laronge  and  E.  P.  Strong  as  sureties,  and 
entered  into  the  required  recognizance. 


No.  335. 

Recognizance. 

The  United  States  of  America,  Northern  District  of  Ohio, 
Eastern  Division,  ss. 
Be  it  remembered,  that  on  this  7th  day  of  November,  A.  D. 
1914,  before  me,  B.  C.  Miller,  clerk  of  the  United  States  dis- 
trict court  of  the  district  and  division  aforesaid,  personally 
came  Chan  Foo  Lin,  alias  Frank  Chan,  as  principal,  and  Her- 
man Laronge  and  E.  P.  Strong  as  sureties,  and  jointly  and 
severally  acknowledged  themselves  to  owe  to  the  United  States 
of  America  the  sum  of  two  thousand  dollars  ($2,000).  to  be 
levied  of  their  goods  and  chattels,  lands  and  tenements,  to  and 
for  the  use  of  the  United  States  aforesaid,  in  case  default  be 
made  in  the  condition  of  this  recognizance,  which  is:  that  if 
the  said  Chan  Foo  Lin,  alias  Frank  Chan,  shall  personally  be 
and  appear  here  in  this  court  from  day  to  day  during  the  pres- 
ent term  thereof,  and  from  term  to  term  of  this  court  there- 


DEPORTATION    OF    CHINESE.  455 

after,  then  and  there  to  answer  to  a  pxetition  therein  pending 
against  him  for  writ  of  habeas  corpus,  and  shall  then  and  there 
abide  the  order  and  judgment  of  this  court  and  not  depart  the 
court  without  leave  thereof,  then  this  recognizance  to  be  void; 
otherwise  to  remain  in  full  force  and  effect. 

Chan  Foo  Lin, 
Herman  Laronge, 
E.  P.  Strong. 
Taken  and  acknowledged  before  me  this  7th  day  of  Novem- 
ber, A.  D.  1914.  B.  C.  Miller, 

Clerk  U.  S.  District  Court,  N.  D.  O., 
By  F.  J.  Denzler,  Deputy  Clerk. 


No.  336. 

Leave  given  to  File  Reply — Order. 

In  this  cause  on  application  of  petitioner  leave  is  granted 
him  to  file  a  reply  to  the  return  of  J.  A.  Fluckey,  immigration 
inspector,  instanter. 

No.  337. 

Reply  to  Writ  of  Habeas  Corpus. 

To  the  Honorable  District  Court  of  the  United  States,  for  the 
Northern  District  of  Ohio : 
Now  comes  Chan  Foo  Lin,  the  petitioner  in  the  above  en- 
titled matter,  and  replying  to  the  return  of  J.  A.  Fluckey,  ad- 
mits that  said  J.  A.  Fluckey  is  inspector  in  charge  at  Cleveland, 
Ohio,  of  the  immigration  service  of  the  Department  of  Labor 
of  the  United  States,  and  denies  that  said  J.  A.  Fluckey  is 
holding  said  Chan  Foo  Lin  by  virtue  of  a  warrant  for  the 
arrest  of  said  petitioner,  which  warrant  was  signed  by  Louis 
F.  Post,  acting  secretary  of  labor.  Said  petitioner  further  de- 
nies that  he  has  been  granted  a  fair  and  full  hearing  in  the 
matters  and  things  involved  in  said  warrant  of  arrest ;  he  de- 
nies that  said  hearing  was  had  in  accordance  with  law  and  in 


456  SUITS   AT   LAW. 

accordance  with  the  regulations  of  the  secretary  of  labor;  and 
denies  that  said  J.  A.  Fluckey  has  any  right  to  hold  or  detain 
said  Chan  Foo  Lin  in  custody. 

This  petitioner  avers  that  he,  the  said  Chan  Foo  Lin,  was 
arrested  in  June,  1914,  by  Immigrant  Inspector  Joseph  Francis, 
at  the  port  of  Cleveland,  after  an  investigation  by  said  In- 
spector Francis,  and  a  report  by  him  to  the  Department  of 
Labor  that  said  Chan  Foo  Lin,  in  the  opinion  of  said  Joseph 
Francis,  was  unlawfully  within  the  United  States;  that  there- 
after the  acting  secretary  of  labor,  Louis  F.  Post,  issued  an 
order  for  the  arrest  of  Chan  Foo  Lin  and  ordered  that  he  be 
given  a  hearing  in  accordance  with  the  regulations  of  the  De- 
partment of  Labor;  that  said  J.  A.  Fluckey,  on  June  25,  1914, 
assigned  said  Joseph  Francis  as  the  examining  officer  to  in- 
quire into  the  fact  as  to  whether  or  not  said  Chan  Foo  Lin  was 
lawfully  within  the  United  States;  that  said  Chan  Foo  Lin 
objected  and  protested  against  the  said  Joseph  Francis  holding 
said  hearing,  for  the  reason  that  said  Joseph  Francis  is  the 
person  who  made  the  examination  and  investigation  of  the 
presence  of  Chan  Foo  Lin  in  the  United  States  and  his  report 
and  opinion  to  the  Department  of  Labor  caused  said  Depart- 
ment of  Labor  to  issue  instructions  for  the  arrest  of  said  Chan 
Foo  Lin. 

The  petitioner  avers  that  at  the  time  of  said  hearing,  said 
Inspector  Francis  had  formed  an  opinion  upon  examination  of 
the  facts,  that  said  Chan  Foo  Lin  was  unlawfully  within  the 
United  States,  and  that  it  was  impossible  to  have  a  fair  hearing 
before  said  Joseph  Francis  for  the  reason  that  he  was  preju- 
diced and  biased  against  said  Chan  Foo  Lin,  and  had  reported 
to  the  department  previous  to  said  hearing  that  said  Chan  Foo 
Lin  was  not  within  this  country  lawfully. 

The  petitioner  was  ordered  to  proceed  to  hearing  over  his 
objection  and  no  evidence  was  introduced  by  the  government 
against  said  Chan  Foo  Lin  except  a  statement  signed  by  one 
Alfred  C.  Chadfield,  who  was  alleged  to  be  an  immigrant  in- 


DEPORTATION    OF    CHINESE.  457 

spector  stationed  at  Detroit,  Michigan.  In  said  statement,  so 
presented,  said  Chadfield  said  he  had  seen  a  photograph  of  a 
certain  Chinese  person  who  gave  his  name  as  Chan  Foo  Lin  or 
Frank  Chan,  and  stated  that  he  had  seen  the  original  of  the 
photograph  at  about  9:25  p.  m.  on  May  16,  1914,  in  Windsor, 
Ontario.  Said  Chan  Foo  Lin  was  given  no  opportunity  to  see 
the  photograph  or  to  cross-examine  said  Chadfield,  but  said 
statement  was  accepted  as  evidence,  and  the  only  evidence  that 
said  Chan  Foo  Lin  had  come  to  the  United  States  of  America 
■within  three  years. 

This  petitioner  further  avers  that  at  such  hearing  he  pro- 
duced as  a  witness  Miss  Mary  F.  Trapp,  who  has  been  em- 
ployed as  a  teacher  in  the  public  schools  for  more  than  twenty 
years,  and  that  said  witness  testified  that  said  Chan  Foo  Lin 
was  known  to  her  by  reason  of  having  attended  a  Sunday- 
school  at  the  Old  Stone  Church  in  Cleveland  in  which  said 
]\Iary  F.  Trapp  was  a  teacher,  and  that  said  Chan  Foo  Lin  had 
been  a  regular  attendant  at  said  Sunday-school  class,  taught  by 
said  Mary  F.  Trapp,  since  the  first  Sunday  in  April,  1914,  and 
up  to  the  time  of  his  arrest,  which  was  in  June.  Said  Mary  F. 
Trapp  likewise  presented  the  original  record  of  the  Old  Stone 
Church  Sunday-school,  showing  that  said  Chan  Foo  Lin  had 
attended  Sunday-school  as  testified  to  by  said  Mary  F.  Trapp, 
and  identified  this  petitioner  as  the  person  described  as  Chan 
Foo  Lin  on  the  record  of  said  Sunday-school. 

This  petitioner  further  avers  that  during  said  hearing  said 
Chan  Foo  Lin  presented  many  witnesses  who  testified  to  his 
birth  in  the  United  States,  gave  a  full  and  free  account  of  him- 
self from  birth  until  the  date  of  his  arrest,  said  witnesses  being 
both  Chinese  and  English. 

Notwithstanding  the  clear  and  complete  defense  of  said  Chan 
Foo  Lin,  the  government  of  the  United  States,  after  said  hear- 
ing had  closed,  and  without  notice  to  this  petitioner  (knowing 
that  the  statement  of  said  Alfred  C.  Chadfield  had  been  dis- 
credited and  disproved  by  the  records  and  testimony  of  said 
Mary  F.   Trapp),  procured  one  Jose  Salazar,  who  lives  at 


458  SUITS   AT    LAW. 

Juarez,  Mexico,  to  make  a  statement  that  he  had  seen  a  picture 
which  was  marked  "Chan  Foo  Lin,  ahas  Frank  Chan,  Cleve- 
land, Ohio,"  and  had  seen  the  original  of  said  picture  in  Juarez 
and  in  Chichuahua,  some  time  a  little  less  than  a  year,  bemg 
unable  to  state  exactly. 

This  petitioner  avers  that  said  Jose  Salazar  has  not  seen  this 
petitioner  in  Mexico  at  any  time  or  place ;  that  if  any  picture 
was  presented  to  him  which  he  really  recognized,  it  was  not  the 
picture  of  this  petitioner ;  that  this  petitioner  was  not  given  the 
opportunity  of  examining  the  photograph  or  of  cross-examin- 
ing said  Jose  Salazar ;  nor  had  this  petitioner  any  opportunity 
to  go  to  Mexico,  nor  would  the  law  permit  him  to  go  to  Mexico 
and  return  to  this  country,  for  the  purpose  of  examining  said 
Jose  Salazar. 

This  petitioner  further  avers  that  without  notice  or  warning 
to  him  after  said  hearing  by  said  Joseph  Francis  had  been  com- 
pleted, the  government  procured  affidavits  and  statements  of 
persons  to  the  effect  that  they  had  been  shown  a  picture  or 
photograph  and  the  original  was  unknown  to  them. 

This  petitioner  avers  that  the  government  did  not  present 
nor  furnish  to  this  petitioner  the  photograph  alleged  to  have 
been  shown  to  the  various  persons  who  made  statements  as 
hereinbefore  alleged,  and  that  this  petitioner  was  unable 
thereby  to  refute  the  statements  of  said  persons  that  the  origi- 
nal of  the  photograph  shown  to  them  was  this  petitioner. 

This  petitioner  further  avers  that  he  is  an  American  citizen ; 
that  he  was  born  in  the  United  States ;  that  the  action  taken  by 
the  Department  of  Labor  is  arbitrary  and  unjust  and  unfair 
in  the  manner  hereinbefore  set  forth,  and  that  he  was  denied  a 
hearing  upon  the  question  of  his  citizenship  or  the  right  to 
remain  in  the  United  States,  and  having  fully  answered,  prays 
that  he  may  be  given  a  hearing  upon  his  right  to  remain  in  this 
country  and  an  opportunity  to  fairly  determine  his  American 
citizenship ;  that  upon  hearing  he  be  discharged  from  custody. 

E.  P.  Strong, 

ClINE   &   MiNSHALL. 


DEPORTATION   OF   CHINESE.  459 

State  of  Ohio,  Cuyahoga  County,  ss. 

Chan  Foo  Lin,  being  first  duly  sworn,  on  oath  deposes  and 
says  that  he  is  the  petitioner  in  the  above  entitled  cause  and 
that  the  facts  and  allegations  contained  in  the  above  reply  are 
true  as  he  verily  believes.  Chan  Foo  Lin. 

Sworn  to  before  me  and  subscribed  in  rhy  presence  this  21st 
day  of  November,  1914.  W.  R.  Ryan,  Jr., 

[Seal.]  Notary  Public. 

Tax  fee,  40c. 


No.  338. 

Hearing  on  Application. 

This  cause  came  on  to  be  heard  upon  the  application  for  writ 
of  habeas  corpus  and  upon  the  return  of  J.  A.  Fluckey,  immi- 
gration inspector  in  charge  at  Cleveland,  Ohio,  respondent 
herein,  arguments  of  counsel  were  begun,  but  not  concluded, 
when  the  hour  for  adjournment  arrived,  whereupon  further 
proceedings  were  continued  until  Wednesday,  November  18, 
1914,  at  9 :30  o'clock. 


No.  339. 

Decree  Dismissing  Application  and  Remanding  Alien. 

This  day  came  again  the  United  States  attorney  on  behalf  of 
the  United  States  and  also  came  J.  A.  Fluckey,  immigration 
inspector,  with  the  petitioner  at  the  bar  of  court.  And  the 
court  having  heretofore  taken  the  matter  under  advisement, 
it  is  now, 

Ordered  that  the  application  herein  be  and  the  same  is  hereby, 
dismissed  and  the  said  alien  remanded  into  the  custody  of  J.  A. 
Fluckey,  immigration  inspector,  for  deportation  to  the  republic 
of  China  under  the  warrant  of  deportation  issued  by  J.  B. 
Densmore,  acting  secretary  of  labor.  To  which  judgment  and 
order  of  the  court  the  said  alien  then  and  there  excepted  and 
gave  notice  of  his  intention  in  open  court  to  appeal  this  cause 


460  SUITS  AT  LAW. 

to  the  United  States  circuit  court  of  appeals  for  the  sixth  cir ^ 
cult.  And  it  is  further  ordered  that  said  alien  during  the 
pendency  of  appeal  shall  be  remanded  to  the  custody  of  the 
United  States  marshal. 


No.  340. 

Order  of  Discharge  (1). 
(Venue.) 
In  the  Matter  of  Wong  Quen  Luck  on  Habeas  Corpus. 

This  matter  having  been  regularly  brought  on  for  hearing 
upon  the  issues  joined  herein,  and  the  same  having  been  duly 
heard  and  submitted,  and  due  consideration  having  been  had 
thereon,  it  is  by  tlie  court  now  here  ordered,  that  the  said 
named  person  in  whose  behalf  the  writ  of  habeas  corpus  herein 
was  sued  out,  is  illegally  restrained  of  his  liberty,  as  alleged 
in  the  petition  herein,  and  that  he  be,  and  he  is  hereby  dis- 
charged from  the  custody  from  which  he  has  been  produced, 
and  that  he  go  hence  without  day. 

Entered  this day  of ,  1915. 

A.  B.  C,  Clerk, 
By  E.  F.  G.,  Deputy  Clerk. 

(1)  Exception    to    the    order    of    discharge    may    be   made    by    the 
respondent. 


DEPOSITIONS.  461 

DEPOSITION  IN  SUITS  AT  LAW  AND  IN  EQUITY. 
No.  341. 

Notice  of  Deposition  de  bene  esse. 

[Caption.] 

Y.  &  Y., 

Solicitors  for  Defendant. 

Please  take  notice  that  the  plaintiff  herein  will  take  the  testi- 
mony of  E.  F.,  G.  H.  and  I.  J.,  all  of  whom  reside  at  the  city 

of ,  and  state  of ,  and  others,  each  and  all  of  whom 

reside  more  than  one  hundred  (100)  miles  from  the  place  of 
trial  herein,  and  more  than  one  hundred  (100)  miles  from  any 

place  at  which  a  circuit  court  of  the  United  States  for  the 

district  of  is  appointed  to  be  held  by  law,  at  the  final 

hearing  for  use  on  behalf  of  the  plaintiff,  before  J.  N.,  Esq.,  a 

notary  public  in  and  for  the  county  of  .  who  is  not  of 

counsel  nor  interested  in  this  cause,  at  the  office  of  X.  &  X.,  at 

No; street,  in  the  city  of ,  and  state  of ,  on 

the day  of ,  at  11  o'clock  a.  m.,  and  thereafter  from 

day  to  day  as  the  takmg  of  the  depositions  may  be  adjourned ; 
and  such  testimony  will  be  so  taken  in  accordance  with  the 
provisions  of  sections  863,  864  and  865  of  the  revised  statutes 
of  the  United  States  and  the  equity  rules.  X.  &  X., 

Solicitors  for  Plaintiff. 

Dated  at .  No. St., . 

(1)  See  R.  S.,  Sees.  863,  864  and  865;  Desty's  Fed.  Proc.  Sees.  382, 
383  and  384,  and  cases  there  cited;  47th  Rule  in  Equity;  see  also  5th 
ed.  Foster's  Fed.  Proc,  Sees.  354,  355. 

R.  S.,  Sec.  861  requires  the  proof  in  actions  at  common  law  to  be 
taken  by  oral  testimony  and  examination  of  witnesses  in  open  court, 
except  as  elsewhere  by  statute  provided;  hence  authority  to  take 
testimony  by  deposition  must  be  found  in  the  statutes.  Compania 
Azucarera  Cubana  v.  Ingraham,  180  Fed.  516;  in  this  case  it  was  held 
that  no  federal  law  permits  taking  the  deposition  of  foreign  witnesses, 
but  if  the  federal  court  is  sitting  in  a  state  which  authorizes  the  taking 
of  the  depositions  of  foreign  witnesses,  the  federal  court  may  issue 
a  dedimus  potestatem  to  take  testimony  in  Cuba. 

Where  federal  statutes  permit  the  taking  of  depositions  the  mode 
of  doing  so  may  be  according  to  federal  or  state  provisions.  McLen- 
nan V.  Kansas  City,  22  Fed.  198.  act  of  March  9.  1892,  27  Stat.  L.  17. 


462  DEPOSITIONS. 

R.  S.,  Sec.  863  is  not  affected  by  the  conformity  act,  R.  S.,  Sec.  914, 
the  latter  having  no  application  to  the  taking  of  depositions  in  federal 
courts.     Sage  v.  Tauszky,  Fed.  Cas.  No.  12214. 

A  judge  or  court  can  not  deprive  a  party  of  the  privilege  extended 
by  R.  S.,  Sec.  863.  In  re  National  Equipment  Co.,  195  Fed.  488,  115 
C.  C.  A.  398.  Nor  does  equity  rule  47  (new  rules)  vary  or  limit  the 
provisions  of  R.  S.,  Sec.  863.  Iowa  Washing  Machine  Co.  v.  Ward,  227 
Fed.  10O4,  afifirmed  in  234  Fed.  88,  148  C.  C.  A.  104;  although  the  time 
limit  prescribed  in  rule  47  is  said  to  have  been  made  with  section  863 
in  contemplation,  in  Victor  Talking  Machine  Co.  v.  Sonora  Phono- 
graph Corporation,  221  Fed.  676. 

R.  S.,  Sec.  863,  permits  the  taking  of  the  deposition  of  a  plaintiff. 
Blood  V.  Morrin,  140  Fed.  918.  Or  of  a  defendant.  Hartman  v. 
Feenaughty,  139  Fed.  887.  But  does  not  apply  to  a  foreign  witness. 
180  Fed.  516,  supra. 

That  a  court  order  is  not  necessary  in  order  to  take  deposition 
under  section  863,  see  Henning  v.  Boyle,  112  Fed.  397;  it  is  also  laid 
down  therein  that  it  is  good  practice  to  issue  subpoena  for  witness 
from  the  clerk's  office  in  district  of  witness's  residence,  filing  in  said 
office  an  affidavit  that  the  cause  in  which  the  deposition  is  sought 
is  pending  and  notice  of  the  examination  has  been  given;  the  court 
further  observes  that  a  commission  to  take  testimony  will  not  be 
granted  by  a  federal  court  when  the  more  convenient  mode  of  section 
863  is  available,  the  right  under  said  section  being  absolute. 

If  deposition  is  objected  to  the  proper  practice  is  to  make  motion 
to  suppress,  but  in  some  cases  a  motion  to  vacate  the  notice  to  take 
has  been  allowed  to  save  parties  the  expense  incident  to  the  taking 
of  depositions  which  will  be  defettive.  Audriffen  Refrigerating  Ma- 
chine Co.  v.  General  Electric  Co.,  245  Fed.  783,  declining  to  follow 
Kline  v.  Liverpool,  184  Fed.  969,  and  producing  convincing  reasons 
why  the  latter  case  should  not  rule  the  question. 

A  deposition  can  not  be  used  when  witness  is  available  at  the  trial 
although  not  called.  Vagaszki  v.  Consol.  Coal  Co.,  225  Fed.  913,  141 
C.  C.  A.  37;  as  to  the  manner  of  using  a  deposition  at  trial  this  case 
holds  that  it  is  proper  for  the  court  to  permit  counsel  for  one  of  the 
parties  to  take  a  stand  at  the  bar  and  read  the  questions,  and  counsel 
for  the  other  party  to  take  the  chair  of  the  witness  and  read  the 
replies,  commending  that  manner  as  being  especially  helpful  to  the 
jury  in  making  a  clear  separation  between  question  and  answer. 

The  power  of  a  court  to  order  a  subpoena  duces  tecum  under 
section  863  is  not  doubted  since  the  decision  in  U.  S.  v.  Tilden,  Fed. 
Cas.  No.  16522  (1879);  Dancel  v.  Goodyear  Shoe  Machinery  Co.,  128 
Fed.  753;  Crocker-Wheeler  Co.  v.  Bullock,  134  Fed.  241. 

Authority  for  dedimus  potestatem  and  in  perpetuam  rei  memoriam 
is  conferred  by  R.  S.,  Sec.  866,  which  expressly  provides  against  the 
application  thereto  of  R.  S.,  Sees.  863,  864  and  865;  as  to  grounds  upon 
which  the  dedimus  potestatem  will  issue,  see  Zych  v.  Amer.  Car,  etc., 
Co.,  127  Fed.  723,  holding  that  the  application  or  petition  to  take  must 
be  verified  and  must   state  a   well-grounded   apprehension  of  failure 


DEPOSITIONS.  463 

or   delay   of  justice.      As    to   in   perpetuam   rei   memoriam,    see    Ohio 
Copper  Mining  Co.  v.  Hutchings,  172  Fed.  201,  96  C.  C.  A.  653. 

Other  provisions  regarding  the  taking  of  depositions  are  contained 
in  R.  S.,  Sees.  868  to  874. 


No.  342. 

Subpoena  of  Witness  de  bene  esse. 

[Caption.] 

To  G.  H. 

Please  take  notice  that  you  are  required  to  appear  before  me 

at  my  office,  number , street,  in  the  city  of ,  on 

the day  of ,  at  10  o'clock  in  the  forenoon  of  that  day, 

and  there  to  be  examined  de  bene  esse  on  the  part  of  the 

in  the  above  entitled  cause.  You  are  required  to  be  present  to 
testify  at  the  time  and  place  above  mentioned. 

Witness  my  hand  and  official  seal  at  ,  this  day 

of .  J.N. 

[Seal.]  [Official  Title.] 


No.  343. 

Caption  for  Depositions  de  bene  esse. 

The  United  States  of  America, 

District  of , 

State  of ,  County  of ,  ss. 

The  examination  of  witnesses  de  bene  esse  beginning  on  the 

day  of  ,  on  behalf  of  the  ,  before  me,  J.  N. 

[official  title],  at  my  office  at  number , street,  in  the 

city  of ,  in  the  said  district  of ,  in  the  state  aforesaid, 

in  a  certain  suit  now  pending  and  undetermined  in  the  district 

court  of  the  United  States  for  the  — —  district  of [state 

place  the  court  is  held] ,  in  the  district  aforesaid,  wherein  A.  B. 
is  plaintiff,  and  C.  D.  is  defendant, 

>^   G.  H.,  a  witness  produced  on  behalf  of  the  plaintiff  [or,  de- 
fendant], being  first  duly  sworn,  deposes  and  says  as  follows: 

My  name  is  G.  H.,  age ,  and  I  reside  at  and  am  em- 
ployed, etc.  [Continue  with  the  deposition,  zvhich  the  witness 
must  sign.] 


464  DEPOSITIONS. 

No.  344. 

Certificate  at  Close  of  Depositions  de  bene  esse. 

State  of , 

County  of ,  ss. 

I,  J.  N.,  a  notary  public  in  and  for  said  county  and  state  [or. 
United  States  commissioner,  or  as  may  be],  duly  commissioned 
and  qualified,  and  authorized  to  administer  oaths,  and  to  take 
and  certify  depositions,  do  hereby  certify  that,  pursuant  to  the 
annexed  notice  issued  and  served  in  the  civil  cause  depending 

in  the  circuit  court  of  the  United  States  for  the  district 

of ,  wherein  A.  B.  is  plaintiff,  and  C.  D.  defendant,  I  was 

attended  at  my  office,  No. , street,  in ,  by  R.  X., 

counsel  for  said  plaintiff,  as  also  by  R.  Y.,  counsel  for  defend- 
ant, on  the  several  days  and  dates  hereinbefore  stated ;  that  the 
aforenamed  witnesses,  E.  F.,  G.  H.  and  J.  S.,  who  were  of 
sound  mind  and  lawful  age,  and  were  by  me  first  carefully 
examined  and  cautioned  and  duly  sworn  to  testify  the  truth, 
the  whole  truth,  and  nothing  but  the  truth ;  and  they  thereupon 
testified  as  is  above  shown,  and  that  the  depositions  by  them 
subscribed,  as  above  set  forth,  were  reduced  to  writing  by  me 
(1)  [or,  by  the  deponent  in  my  presence]  in  the  presence  of 
the  witnesses  themselves,  and  from  the  statements  of  them,  and 
were  subscribed  by  the  said  witnesses  in  my  presence,  and  were 
taken  at  the  place  in  the  annexed  notice  specified  and  at  the 
times  as  set  forth,  adjournments  being  had  or  taken  from  day 
to  day  as  provided  for  in  said  notice,  and  that  all  was  so  done, 
written  and  signed  in  the  presence  of  said  counsel  for  said 
plaintiff  and  defendant.  I  further  certify  that  the  reason  for 
taking  said  depositions  was,  and  is,  and  the  fact  was,  and  is, 

that  all  of  the  deponents  live  at ,  more  than  one  hundred 

miles  from  the  place  where  the  said  civil  issue  is  appointed  by 
law  to  be  tried ;  that  I  am  neither  of  counsel  nor  attorney  to 
either  of  the  parties  to  said  suit,  nor  interested  in  the  event  of 
said  cause,  (2)  and  that  it  being  impracticable  for  me  to  de- 


DEPOSITIONS.  465 

liver  said  depositions  and  the  exhibits  thereto  attached  with  my 
own  hand  into  the  court  for  which  they  were  taken,  I  have 
retained  the  same  for  the  purpose  of  being  sealed  up  and  di- 
rected with  my  own  hand,  and  speedily  and  safely  transmitted 
to  the  said  court  for  which  it  was  taken,  and  to  remain  under 
my  seal  until  there  opened. (3) 

As  witness  my  hand  and  seal  as  such  examiner  [or  as  may 
be]  at ,  on  this day  of ,  1894.  J.  N. 

[Seal]  [Oificial  Title.'] 

(1)  Where  depositions  are  taken  de  bene  esse  the  certificate  should 
state  they  were  reduced  to  writing  by  the  magistrate  or  by  the  de- 
ponent in  his  presence.  Bell  v.  Morrison,  1  Pet.  355;  Cook  v.  Burnley, 
11  Wall.  663;  Donahue  v.  Roberts,  19  Fed.  863;  In  re  Thomas,  35 
Fed.  822;  Moller  v.  U.  S.,  57  Fed.  494,  6  C.  C.  A.  459;  R.  S., 
Sees.  863-4-5. 

(2)  Am.  Natl.  Ech.  Bk.  v.  Natl.  Bk.,  82  Fed.  961,  27  C.  C.  A. 
74;  Donahue  v.  Roberts,  19  Fed.  863;  Stewart  v.  Townsend,  41 
Fed.  121. 

(3)  Stewart  v.  Townsend,  41  Fed.  121;  Egbert  v.  Citz.  Ins. 
Co.,  7  Fed.  47. 


No.  345. 

Letters  Rogatory  (1). 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  United  States  to  any  Judge  or  Tribunal 
having  jurisdiction  of  civil  causes  at  Havana,  Greeting: 

Whereas,  a  certain  suit  is  pending  before  us  in  which  L.  M. 
and  J.  T.  are  the  claimants  of  the  schooner  P.  and  cargo,  and 
the  United  States  of  America  are  the  defendants;  and  it  has 
been  suggested  to  us  that  there  are  witnesses  residing  within 
your  jurisdiction  without  whose  testimony  justice  can  not  com- 
pletely be  done  between  the  said  parties : 

We  therefore  request  you  that  in  furtherance  of  justice  you 
will,  by  the  proper  and  usual  process  of  your  court,  cause  such 
witness  or  witnesses  as  shall  be  named  or  pointed  out  to  you 


466  DEPOSITIONS. 

by  the  said  parties,  or  either  of  them,  to  appear  before  you,  or 
some  competent  person  by  you  for  that  purpose  to  be  appointed 
and  authorized,  at  a  precise  time  and  place  by  you  to  be  fixed, 
and  there  to  answer  on  their  oaths  and  affirmations  to  the 
several  interrogatories  hereunto  annexed;  and  that  you  will 
cause  their  depositions  to  be  committed  to  writing  and  returned 
to  us  under  cover,  duly  closed  and  sealed  up  together  with  these 
presents ;  and  we  shall  be  ready  and  willing  to  do  the  same  for 
you  in  a  similar  case  when  required. 
[Add  teste.] 

(1)  See  R.  S.,  Sees.  875,  4071-4074;  Desty's  Fed.  Proc,  Sec.  394. 
Stein  V.  Bowman,  13  Pet.  218;  HoUiday  v.  Schultzeberge,  57  Fed. 
660;  Nelson  v.  U.  S.,  No.  10116  Fed.  Cas.;  Pet.  C.  C.  235;  Bouvier's 
Law  Die.  Title  "Letters  Rogatory;"  1  Greenleaf  on  Evidence  320. 
See  also,  In  re  Letters  Rogatory,  36  Fed.  306,  explaining  the  scope  of 
the  statutes  above  mentioned.  DeVilleneuve  v.  Morning  Journal 
Association,  206  Fed.  70,  to  the  effect  that  a  federal  court  has  inherent 
power  to  issue  letters  rogatory,  and  discussing  power  conferred  by 
R.  S.  U.  S.,  Sec.  875. 


No.  346. 

Letters  Rogatory. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  President 
of  the  Court  at ,  in  the  Kingdom  of ,  Greeting : 

Whereas,  a  certain  suit  is  pending  in  our  circuit  court  for  the 

district  of ,  in  which  A.  B.,  as  administrator  of  the 

estate  of  A.  N.,  deceased,  is  plaintiff,  and  the  C.  D.  Railroad 
Company  is  defendant,  and  it  has  been  suggested  to  us  that 
justice  can  not  completely  be  done  between  the  said  parties 
without  the  testimony  of  E.  F.,  G.  H.  and  I.  J.,  all  of  whom 
reside  at ,  within  your  jurisdictioii : 

We  therefore  request  you  that  in  furtherance  of  justice  you 
will,  by  the  proper  and  usual  process  of  your  court,  cause  said 
E.  F.,  G.  H.  and  I.  J.  to  appear  before  you,  or  some  competent 


DEPOSITIONS.  467 

person  by  you  for  that  purpose  to  be  appointed  and  authorized, 
at  a  precise  time  and  place  by  you  to  be  fixed,  then  and  there  to 
make  answer  on  their  oaths  and  affirmations  to  the  several 
interrogatories  hereunto  annexed ;  and  that  you  will  cause  their 
depositions  to  be  committed  to  writing  and  to  be  returned  to  us 
under  cover,  addressed  to  the  clerk  of  the  circuit  of  the  United 

States  for  the district  of ,  at  the  city  of ,  and 

state  of ,  in  the  United  States  of  America,  duly  closed  and 

sealed  up  together  with  these  presents ;  and  we  shall  be  ready 
and  willing  to  do  the  same  for  you  in  a  similar  case  when 
required. 
[Add  teste.] 


No.  347. 

Order  for  Dedimus  Potestatem. 

[Caption.] 

On  reading  and  filing  affidavit  of  plaintiff's  attorney  and 
notice  of  motion,  with  proof  of  due  service  thereof  on  attorneys 
for  the  defendant,  A.  R.,  who  only  has  appeared  herein,  J.  H., 
Esq.,  appearing  for  the  plaintiff,  and  R.  Y.,  Esq.,  for  the  de- 
fendant, A.  R. : 

It  is  on  motion  of  J.  H.,  Esq.,  United  States  attorney,  or- 
dered that  a  dedimus  potestatem  be  issued  in  this  cause  out  of 
this  court,  directed  to  the  United  States  consul,  and  to  such 
deputy  or  representative  of  said  consul  as  may  be  author- 
ized by  him  to  act  ih  his  place  and  stead,  at  the  following 
named  places,  respectively,  viz. :  [name  them  as]  To  E.  P., 
United  States  consul  at  Aix-la-Chapelle  (Aachen),  Germany, 
and  his  deputy  or  representative;  to  examine  the  following 
named  persons  under  oath  as  witnesses  herein,  viz.  [name 
them]. 

It  is  further  ordered  that  the  examination  above  provided 

for  shall  take  place  during  the  months  of and ,  and 

at  such  times  within  said  months  as  is  hereinafter  designated. 


468  DEPOSITIONS. 

It  is  further  ordered  that  either  party  to  this  action  shall 
have  liberty  to  examine  not  only  the  witnesses  herein  named, 
but  any  other  witnesses  that  either  party  may  desire  to  ex- 
amine at  the  aforesaid  places  of  [name  them],  before  either  of 
the  persons  herein  authorized  to  take  testimony ;  provided,  how- 
ever, that  the  names  of  said  witnesses  and  their  places  of  resi- 
dence shall  be  given  to  the  attorney  of  the  opposite  side  in , 

before  the day  of ,  or  such  notice  be  given  in  Europe 

to  the  opposite  counsel  acting  there  for  either  party  to  this 
action  in  either  of  the  aforesaid  places  of  [name  them],  where 
such  other  witnesses  are  to  be  examined,  two  days  before  such 
examination. 

It  is  further  ordered  that  prior  to ,  the  attorneys  for  the 

respective  parties  shall  give  notice  in ,  each  to  the  other, 

of  the  names  and  European  address  for  the  last  week  in , 

of  the  counsel  for  the  respective  parties,  who  are  to  take  testi- 
mony under  this  commission. 

It  is  further  ordered  that  the  examination  of  witnesses  shall 
be  had  at  the  following  places  in  the  following  order,  and  not 

otherwise,  viz. :  First  at ,  next  at ,  next  at ,  etc. ; 

that  the  examination  shall  commence  at on  the day 

of ,  or  within  two  days  thereafter ;  and  that  no  examina- 
tion shall  be  made  of  witnesses  at  any  place  after  the  exam- 
ination has  been  finished  at  that  place,  or  the  examination  of 
witnesses  commenced  at  another  place. 

It  is  further  ordered  that  the  counsel  for  the  plaintiff  shall 
have  with  him,  at  any  and  all  said  exartiinations  of  said  wit- 
nesses, or  either  of  them,  all  the  original  invoices  mentioned 
in  the  declaration  herein,  or  copies  or  duplicates  thereof,  and 
which  are  in  the  possession  of  the  plaintiff,  and  that  counsel 
for  defendant  shall  have  full  and  free  inspection  thereof,  and 
liberty  to  take  copies  of  the  same. 

It  is  further  ordered  that  all  directions  herein  contained  as 
to  time,  place,  order  and  manner  of  examination  of  said  wit- 
nesses may  be  changed  or  modified  by  the  written  consent  of 
the  counsel  for  the  respective  parties  in  Europe  or  in . 


DEPOSITIONS.  469 

It  is  further  ordered  that  the  examination  of  all  witnesses 
under  this  commission  shall  be  oral,  or  taken  by  question  and 
answer  in  the  usual  manner  of  taking  oral  depositions  by  ex- 
amination, cross-examination,  and  redirect  examination;  that 
the  testimony  given  under  such  examination  shall  be  reduced 
to  writing,  signed  by  the  witnesses  and  certified  by  the  com- 
missioners respectively,  and  by  them  transmitted  by  mail  to  the 

clerk  of  this  court  at  the  city  of ,  unless  otherwise  mutually 

agreed  upon  by  said  counsel  for  both  parties. 

It  is  further  ordered  that  all  testimony  taken  under  the  com- 
mission provided  for  herein  shall  be  taken  subject  to  all  legal 
objections  at  the  trial  of  this  action.  G.  W., 

Judge  of  the  District  Court  for  the District  of . 


No.  348. 

Dedimus  Potestatem  (1). 

The  United  States  of  America, 

District  of ,  ss. 

The   President  of  the  United  States  of  America  to  J.   N., 
Greeting : 

Know  ye,  that  we,  in  confidence  of  your  prudence  and 
fidelity,  have  appointed  you  commissioner,  and  by  these  pres- 
ents do  give  you  [or,  any  two  or  more  of  you]  full  power  and 
authority  diligently  to  examine  upon  his  [or,  their  respective] 
corporal  oath  [or,  affirmation]  before  you  to  be  taken,  G.  H. 
as  witness  on  the  part  of  plaintiflF  [or,  defendant]  in  a  certain 
cause  now  pending  undetermined  in  the  circuit  court  of  the 

United  States  of  America  for  the district  of in  the 

circuit,  wherein  A.  B.  is  plaintifif,  and  C.  D.  is  defendant, 

touching  the  premises  [or,  if  interrogatories  are  annexed,  on 
the  interrogatories  hereunto  annexed]. 

And  we  do  further  empower  you  [or,  any  two  or  more  of 
you]  to  examine  on  the  same  behalf,  and  in  like  manner,  any 
other  person  or  persons  who  may  be  produced  as  witnesses 
before  you. 


470  DEPOSITIONS. 

And  we  do  hereby  require  you  [and  any  two  or  more  of 
you]  before  whom  such  testimony  may  be  taken,  to  reduce  the 
same  to  writing,  and  to  close  it  up  under  your  hand  and  seal, 
directed  to  B.   R.,  clerk  of  the  circuit  court  of  the  United 

States, district  of ,  city  of ;  and  that  you  return 

the  same  when  executed  as  above  directed,  annexed  to  this 
writ,  with  the  title  of  the  cause  indorsed  on  the  envelope  of  the 
commission,  into  the  said  circuit,  court,  before  the  judge  [or, 
judges]  thereof,  with  all  convenient  speed. 

[Add  teste] 

(\)  See  R.  S.,  Sec.  866;  Desty's  Fed.  Proc,  Sec.  385.  As  to  taking 
depositions  under  a  commission,  see  Giles  v.  Paxson,  36  Fed.  882. 


No.  349. 

Commissioner's  Return. 
[Caption.] 

United  States  of  America. 

District  of ,  ss. 

I,  E.  M.,  commissioner  of  the  circuit  court  of  the  United 

States  for  the district  of ,  named  in  the  commission 

hereto  annexed,  do  hereby  certify  that  on  the  day  of 

,  at  the  city  of ,  I  was  attended  by  R.  X.,  counsel  for 

A.  B.,  and  R.  Y.,  counsel  for  E.  P.,  opposing  intervenor,  and 
by  the  witnesses,  W.  S.  and  W.  T.,  and  the  said  witnesses,  who 
were  of  sound  mind  and  lawful  age,  having  been  by  me  first 
carefully  examined  and  cautioned  and  sworn  to  testify  the 
truth,  the  whole  truth  and  nothing  but  the  truth  in  the  within 
entitled  cause,  gave  their  testimony,  which  by  consent  of  coun- 
sel for  the  respective  parties  was  taken  down  by  a  stenographer 
appointed  by  me  for  that  purpose,  in  the  presence  of  the  wit- 
nesses and  from  their  statements,  and  the  said  stenographic 
notes  were  afterward  reduced  to  writing  by  a  typewriter,  and 
the  signatures  of  the  witnesses  to  the  same  being  waived  by 
consent  of  counsel  for  the  respective  parties. 


DEPOSITIONS.  471 

And  I  do  further  certify  that  I  am  not  of  counsel  nor  attor- 
ney for  either  of  the  parties  in  the  said  commission  named,  nor 
in  any  way  interested  in  the  event  of  the  cause  named  therein. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  seal 

this day  of ,  A.  D.  19—.  E.  M., 

Commissioner. 


No.  350. 

Order  to  Show  Cause  why  the  Time  for  Taking  Testimony 
should  not  be  Extended  (1). 

[Caption.] 

On  reading  the  affidavits  of  S.  D.  and  E.  M.,  and  on  motion 
of  R.  Y.,  solicitor  for  defendant  in  the  above  entitled  suit,  it  is 
hereby  ordered  that  copies  of  the  same,  with  a  copy  of  this 
order,  be  served  on  the  solicitor  for  the  plaintiff  in  the  above 

suit  on  or  before  the day  of ,  1894,  and  that  the  said 

plaintiff  show  cause,  if  any  he  have,  at ,  in  the  city  of , 

on  the  : day  of ,  1894,  at  10  o'clock  a.  m,,  why  the 

time  allowed  for  taking  testimony  on  behalf  of  the  defendant 
in  the  said  cause  should  not  be  extended  to  and  including  the 
day  of ,  1894. 

(1)   See  47th  rule  in  equity. 


No.  351. 

Order  Extending  the  Time  for  Taking  Testimony. 

[Caption.] 

On  reading  and  filing  the  defendant's  order  to  show  cause, 
and  the  affidavits  of  S.  D.  and  E.  M.  thereto  annexed,  and 
after  hearing  R.  X.,  Esq.,  for  the  plaintiff,  and  R.  Y.,  Esq.,  for 
the  defendant,  it  is  ordered  that  the  time  allowed  for  taking 
testimony  on  behalf  of  the  defendant  in  the  above  entitled  cause 

be  extended  to  and  including  the day  of ,  1894,  and 

that  the  plaintiff  have  days  thereafter  within  which  to 

take  testimony  in  rebuttal. 


472  DEPOSITIONS. 

No.  352. 

Notice  of  Motion  for  Appointment  of  Special  Examiner  (1). 
[Caption.] 

R.Y., 

Solicitor  for  Defendant. 

Please  take  notice  that  at  a  stated  [or,  special]  term  of  this 

court,  to  be  held  on  the day  of ,  1894,  at [place 

of  holding  court],  the  plaintiff  in  this  cause  will  move  at  10 
o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be 

heard,  for  an  order  that  J.  N.,  Esq.,  of  ,  be  appointed 

special  examiner  herein,  under  the  67th  rule  as  amended,  to 
take  the  deposition  of  witnesses  in  behalf  of  said  plaintiff. 

Z.  &  X., 

Dated .  Solicitors  for  Plaintiff. 

Service  accepted,  etc. 

(1)  See  67th  rule  in  equity,  as  amended  May  3,  1892.  Notaries 
public  are  authorized  by  statute  to  take  depositions  to  be  used  in  the 
courts  of  the  United  States.  See  19  Stat.  L.  206;  Desty's  Fed.  Proc, 
Sees.  381  and  381a;  but  there  is  some  doubt  whether  a  notary  is 
authorized  to  take  depositions  under  the  67th  rule  in  equity  unless 
by  consent  of  counsel  or  appointment  of  court  he  is  made  a  special 
examiner. 

Former  equity  rule  67  is  now  superseded  by  new  equity  rules 
Nos.  46  to  54,  which  should  be  consulted  for  changes. 


No.  353. 

Order  Appointing  Special  Examiner. 

[Caption.] 

Upon  reading  and  filing  notice  of  motion,  with  admission  of 
service,  and  on  motion  of  R.  X.,  solicitor  for  plaintiff  [or,  de- 
fendant], no  one  opposing,  it  is  ordered  that  J.  N.,  Esq.,  of 

,  be  and  is  hereby  appointed  special  examiner,  under  the 

47th  rule,  to  take  the  depositions  of  witnesses  on  the  part  of 
the  plaintiff  [or,  defendant]  in  this  cause. 


DEPOSITIONS.  473 

No.  354. 

Consent  Order  to  Appoint  Examiner  to  Take  Deposition. 

[Caption.'] 

In  this  case,  by  consent,  Miss  Clara  Emanuel  is  hereby  ap- 
pointed commissioner  to  take  the  deposition  of  Mrs.  T.  M. 
Davis,  of  McDowell  County,  North  Carolina,  instanter,  and 
return  the  same  to  this  court.  Said  deposition  shall  be  taken 
at  the  home  of  Mrs.  T.  M.  Davis,  near  Old  Fort,  or  at  some 
other  convenient  place  to  be  agreed  upon,  and  shall  be  taken  on 
September  7,  1905,  and  may  be  used  by  either  party  as  evi- 
dence in  the  trial  of  this  case.     All  formalities  are  waived. 

A.  B., 
Attorney  for  Plaintiff. 
C.  D., 
Attorney  for  Defendant. 


No.  355. 

Order  Appointing  Special  Examiner,  under  Equity  Rule  47. 

[Caption.] 

Upon  reading  and  filing  notice  of  motion  for  the  appoint- 
ment of  a  special  examiner  herein  with  admission  of  service, 
it  is  ordered  by  the  court  that  J.  N.,  on  account  of  his  experi- 
ence in  such  matters,  be  and  he  is  hereby  appointed  special 
examiner  herein  under  the  47th  rule.  The  said  special  examiner 
shall  take  the  testimony  in  behalf  of  both  complainant  and  re- 
spondent and  is  authorized  to  take  the  same  in  the district 

of ,  or  elsewhere  according  to  the  convenience  and  require- 
ments of  parties.  Said  testimony  shall  be  given  orally  by  wit- 
nesses and  be  taken  down  stenographically  by  a  skilled  stenog- 
rapher approved  by  the  parties  or  appointed  by  the  court,  and 
thereafter  reduced  to  typewriting  and  when  subscribed  by  the 
witnesses  and  duly  certified  the  same  shall  be  admitted  in  evi- 
dence. 

Done  at  chambers  in  the  city  of ,  this day  of . 

E.  S.,  Jude^e. 


474  DEPOSITIONS. 

No.  356. 

Subpoena  for  Witness. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the District  of ,  Greeting : 

We  command  you  to  summon  G.  H.,  of ,  county  of 

,  district  and  state  aforesaid,  if  he  be  found  in  your  baiH- 

wick,  to  be  and  appear  before  [name  of  court  or  examiner,  or 

as  many  as  may  be],  at ,  on  the day  of ,  1894, 

at  10  o'clock  a.  m.,  to  give  evidence  on  behalf  of  the  plaintiff 
[or,  defendant]  in  a  suit  pending  in  the  district  court  of  the 

United  States  for  the district  of ,  wherein  A.  B.  is 

plaintiff,  and  C.  D.  is  defendant. 

Hereof  fail  not;  and  of  this  writ  make  legal  service  and  due 
return. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  357. 

Subpoena  Duces  Tecum. 

The  United  States  of  America, 

District  of ,  ss. 

The  President  of  the  United  States  of  America  to  E.  F.  and 
G.  H.,  Greeting : 

We  command  and  strictly  enjoin  you  and  each  of  you,  that, 
laying  aside  all  manner  of  business  and  excuses  whatsoever, 
you  and  each  of  you  be  and  appear  in  your  proper  person  be- 
fore our  district  court  [or  such  officer  as  may  be  named  here], 

on  the day  of next,  at  10  o'clock  a.  m.,  and  also  that 

you  bring  with  you  and  produce  at  the  time  and  place  afore- 
said [name  papers  or  books  or  zvhatever  is  to  be  produced  by 
witness]  then  and  there  to  testify,  what  you  and  each  of  you 
may  know,  in  a  certain  action,  pending  in  said  court,  wherein 


DEPOSITIONS.  475 

A.  B.  is  plaintiff,  and  C,  D.  is  defendant  [or,  before  J.  N., 
U.  S.  commissioner,  etc.,  or  as  may  be] ,  and  this  you  do  under 
penalty  of  the  law. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  358. 

Writ     of     Attachment     against     Witness     for     Disobeying 

Subpoena  (1). 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of . 

You  are  hereby  commanded  to  attach  G.  H.,  if  he  may  be 

found  in  your  district,  and  bring  him  on  the day  of 

[or,  forthwith]  personally  before  the  judge  of  the  district  [or, 

circuit]   court  of  the  United  States  for  the  district  of 

,  held  at  the  United  States  court-rooms  in  the  city  of , 

in  the  said  district,  to  answer  for  certain  trespasses  and  con- 
tempts in  not  obeying  our  writ  of  subpoena  directed  to  him 
and  duly  served  on  him,  commanding  him  to  appear  before 

the  said  district  [or,  circuit]  court  at ,  on ,  to  testify 

all  and  singular  those  things  which  he  knows  in  a  certain 
cause  depending  in  the  said  court  between  A.  B.,  plaintiff, 
and  C.  D.,  defendant;  and  you  are  further  commanded  to 
detain  him  in  your  custody  until  he  shall  be  discharged  by  the 
said  court,  and  have  you  then  and  there  this  writ. 

[Add  teste  according  to  the  court  issuing  the  writ.] 

As  to  compelling  the  attendance   of  witnesses,  see  In  re  Allis,  44 
Fed.  216;  Hake  v.  Brown,  44  Fed.  734. 


No.  359. 

Notice  to  Take  Depositions  under  47th  Rule  in  Equity. 

[Caption.] 

The  plaintiff  [or,  defendant]  will  take  notice  that  the  de- 
fendant [or,  plaintiff]  will  examine  witnesses  in  the  above 
entitled  cause,  under  the  47th  Rule  in  Equity,  before  J.  W., 


476  DEPOSITIONS. 

esq.,  [official  title,  as  special  examiner,  or  as  may  be],  at  his 

office  at street,  in ,  on ,  the day  of , 

18 — ,  beginning  said  examination  at  10  o'clock  a.  m.  of  said 
day,  and  continuing  from  day  to  day  until  completed. 

R.  X., 
Solicitor  for  Plaintiff  [or,  Defendant]. 

Service  accepted  this  day  of  ,  1894. 

R.  Y., 
Solicitor  for  Defendant  [or.  Plaintiff]. 


No.  360. 

Affidavit  of  Service  of  Notice  (1). 

State  of ,  County  of ,  ss. 

On  the day  of ,  1894,  I  served  the  within  notice 

on  R.  Y.  by  handing  a  copy  of  the  same  to  him  [or  say,  by 
leaving  a  copy  of  the  same  at  his  residence  or,  place  of  busi- 
ness, as  may  be],  at  No. , street,  in  the  city  of . 

S.  D. 

Subscribed  and  sworn  to  before  me  this day  of , 


1894.  J.  N. 

[Seal.]  [Official  Title.] 

(1)   This   affidavit   may  be   indorsed   on  any   notice,  but   it   is    not 
often  necessary  to  make  affidavit  of  service,  as  counsel  usually  will 
■  admit  service  of  notice. 


No.  361. 

Commencement  for  Depositions  under  47th  Equity  Rule  (1). 

District  Court  of  the  United  States,  for  the 
District  of  . 

A.  B.,  Plaintiff,      \ 

vs.  y  In  Equity,  No. . 

C.  D.,  Defendant.    ) 


Examination  of  witnesses,  beginning ,  1894,  at  No. ■ 

street,  in  ,  before  J.  N.   [official  title j  as,  notary 


DEPOSITIONS.  477 

public  in  and  for county,  state  of ,  special  examiner 

by  agreement  of  counsel]  on  behalf  of  the  plaintiff  [or,  defend- 
ant], under  the  47th  Rule  of  Equity,  pursuant  to  notice. 

Present  R.  X.,  esq.,  counsel  for  the  plaintiff,  and  R.  Y., 
esq,,  counsel  for  the  defendant. 

By  request  of  parties,  it  is  ordered  that  these  depositions 
be  taken  by  qquestion  and  answer. 

G.  H.,  a  witness  produced  on  behalf  of  the ,  being  first 

duly  sworn,  deposes  and  says,  in  answer  to  interrogatories 

propounded  to  him  by  Mr.  X.,  of  counsel  for  the  ,  as 

follows : 

Question  1.  State  your  name,  age,  residence,  and  occu- 
pation. 

Answer,  etc. 

(1)  As  to  taking  depositions  under  the  67th  rule  of  equity,  see 
Ballard  v.  McCloskey,  52  Fed.  677;  Mott  Iron  Works  v.  Standard 
Mfg.  Co.,  48  Fed.  345.  The  67th  rule  in  equity  is  now  superseded 
by  the  47th  and  other  rules,  and  the  cases  must  be  read  with  the 
changes  in  mind. 


No.  362. 

Certificate  at  Close  of  Depositions  under  47th  Equity  Rule. 

[The  United  States  of  America,  for  the 
District  of ,]  or, 

State  of ,  County  of ,  ss. 

I,  J.  N.,  [official  title],  hereby  certify  that  the  above  wit- 
nesses, G.  H.,  S.  L.,  and  A.  H.,  were  by  me  first  duly  sworn 
to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth;  that  their  depositions  were  reduced  to  writing  by  Miss 
A.  M.  in  the  presence  of  the  said  witnesses  respectively,  and 
when  completed  read  over  to  said  witnesses  respectively,  and 
subscribed  by  them  in  my  presence  and  in  the  presence  oi 
such  of  the  parties  and  counsel  as  attended;  that  said  deposi- 
tions were  taken  pursuant  to  the  annexed  notice,  at  the  office 


478 


DEPOSITIONS. 


of  J.  N.,  at ,  beginning  on  the 


day  of 


-,  1894, 


and  continuing  from  day  to  day  as  set  forth ;  that  the  parties 
were  represented  at  the  taking  of  said  deposition  by  their 
respective  counsel  as  set  forth ;  that  the  several  exhibits  recited 
were  offered  in  evidence  and  marked  as  si)ecially  noted  in  the 
foregoing  depositions;  and  that  I  am  not  counsel  or  relative 
of  either  party,  or  otherwise  interested  in  the  event  of  this  suit. 
In  testimony  whereof  I  have  hereunto  set  my  hand  and 

official  seal,  this day  of ,  1894.  J.  N. 

[Official  Title.] 


Notary,  — 
Witnesses, 


FEES. 

folios  at  20c.,  $- 


;  paid  by 


Mileage, 


;  paid  by 


No.  363. 

Transmission  of  Depositions  (1). 

The  depositions  should  be  sealed  and  transmitted  by  the 
officer  taking  them  to  the  clerk  of  the  court  in  which  the  suit 
is  pending.  The  following  form  may  be  used  to  indorse  the 
enclosure  within  which  the  depositions  are  transmitted  to  the 
clerk : 


3 

O 


4) 


<u 


a 

4-1 


* 


Cq^ 


Ph 


T3 
C 
rt     (u 


X 


o    o 


<u     O 


Q  Q 


c 

•T! 

<u 

C 

^ 

rt 

a 

-t-> 

'O 

.^ 

<u 

<u 

> 


3     <u 

c 

> 

o 


o 


73       o 


4->         O 

-    I 


To  the  Clerk  of 
the  District 
Court, 

Cincinnati, 
Ohio 


DEPOSITIONS..  479 

(1)  This  form  may  be  used  for  any  depositions  whether  taken 
de  bene  esse,  under  a  commission,  under  a  state  statute  or  under  the 
47th  rule  in  equity. 

As  to  transmission  of  depositions,  see  Stewart  v.  Townsend,  41 
Fed.  121;  Egbert  v.  Citiz.  Ins.  Co.,  7  Fed.  47;  U.  S.  v.  50  Boxes,  etc., 
92  Fed.  601. 


No.  364. 

Motion  for  Leave  to  Withdraw  Depositions. 

[Caption.] 

Now  comes  the  plaintiff  and  moves  the  court  for  leave  to 
withdraw  the  deposition  of  [naming  them],  and  for  ground 
of  said  motion  says  that  the  matter  contained  in  said  deposi- 
tions is  wholly  irrelevant  to  the  issue.  The  plaintiff  desires 
to  withdraw  the  same  in  order  to  save  the  defendant  any 
trouble  or  expense  in  taking  testimony  in  answer  to  the  matter 
contained  in  said  depositions.  R.  X., 

Solicitor  for  Plaintiff. 


No.  365. 

Order  to  Withdraw  Depositions. 

[Caption.] 

On  hearing  in  open  court  and  good  cause  having  been  shown 
after  notice  to  the  defendant,  leave  is  granted  to  the  plaintiff 
on  its  motion  to  withdraw  the  depositions  of  [naming  them], 
taken  on  its  behalf  at . 


No.  366. 

Stipulation  as  to  Taking  Proofs  (1). 
[Caption.] 

In  this  cause  it  is  hereby  stipulated  between  the  respective 
parties,  by  their  solicitors,  that  the  testimony  therein  shall  be 
taken  orally,  and  that  it  shall  be  taken  down  stenographically 
and  then  transcribed  in  longhand,  and  the  signatures  of  the 


480  DEPOSITIONS. 

witnesses  to  such  transcribed  testimony  are  waived.  The 
testimony  shall  be  taken  before  J.  N.,  special  examiner,  or 
some  person  deputed  by  him.     The  taking  of  the  testimony 

shall  begin  at ,  on  the  day  of  ,  at  11  o'clock 

a.  m.,  and  shall  continue  from  time  to  time  as  suits  the  con- 
venience of  the  parties,  within  the  time  allowed  for  taking 
testimony.  R.  X., 

Attorney  for  Plaintiff. 
R.  Y., 
Attorney  for  Defendant. 

(1)  But  in  a  suit  in  equity  new  rules  46  and  47  must  be  followed. 


No.  367. 

Motion  to  Strike  Out  Parts  of  a  Deposition. 

[Caption.] 

Plaintiff  moves  to  strike  from  the  deposition  of  A.  B.,  filed 
in  the  above  cause  the  following  questions  and  answers  on 
direct  examination  [here  enumerate],  and  the  following  ques- 
tions and  answers  on  cross-examination  [here  enumerate],  for 
the  reason  that  "in  making  those  replies  the  witness  was  labor- 
ing under  a  misapprehension  as  to  the  place  inquired  about, 
and  therefore  the  said  testimony  is  not  applicable  to  the  issue 
involved.  X,  Y., 

Attorney  for  Plaintiff. 


No.  368. 

Motion  to  Suppress  Deposition. 

[Caption.] 

Now  come  the  plaintiffs  herein  by  their  attorneys,  M.  N. 
and  O.  P.,  and  move  the  honorable  court  for  an  order  sup- 
pressing the  deposition  of  T.  R.,  a  witness  herein  for  the 
defendants,  said  deposition  having  been  taken  in  the  city  of 
Detroit  on  the  27th  day  of  June,  1918,  before  R.  Z.,  a  notary 


DEPOSITIONS.  481 

public  in  and  for  the  county  of ,  in  the  state  of  Michigan, 

and  on  file  in  this  cause  in  this  court  of  date  June  30,  1918, 
for  the  reasons  following: 

1.  That  the  time  allowed  in  the  notice  for  taking  said 
deposition  was  too  short  to  permit  the  plaintiffs'  attorneys  to 
journey  to  the  said  place. 

2.  That  the  person  before  whom  said  deposition  was  taken 
was  not  a  notary  public  and  had  no  power  or  authority  to  act 
as  such  or  to  preside  at  the  taking  of  the  deposition  mentioned. 

M.  N.  and  O.  P., 
Attorneys  for  Plaintiffs. 


482  SUITS    IN    EQUITY. 


IN  EQUITY 


FORMAL  PARTS  OF  A  BILL 


No.  369. 

Averring  Citizenship  Where  Numerous  and  Diverse  Parties. 

[Caption.] 

The  plaintiffs  above  named  file  this  their  amended  bill  of 
complaint  herein,  and  for  their  cause  of  action  respectfully 
show  to  your  Honor : 

First.  That  the  plaintiffs  A.  E.  Caldwell.  W.  F.  Mikesell. 
V.  E.  Morgan,  J.  E.  Pohlman,  W.  C.  Pond,  James  W.  Beau- 
champ,  Carl  Washburn  and  Harold  W.  Sims,  were  at  the 
time  of  the  commencement  of  this  action  and  still  are  residents 
and  citizens  of  the  state  of  Idaho. 

Second.  That  the  defendant,  Twin  Falls  Salmon  River 
Land  and  Water  Company,  was  at  all  the  times  in  this  com- 
plaint mentioned  and  still  is  a  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  and  statutes  of  the 
state  of  Delaware  and  a  citizen  of  said  state,  and  as  such 
corporation  engaged  in  the  building,  construction  and  main- 
tenance of  a  certain  irrigation  system  and  the  sale  of  water 
rights  therein  for  the  reclamation  of  lands  in  the  county  of 
Twin  Falls,  state  of  Idaho,  including  the  lands  of  the  plain- 
tiffs hereinafter  described. 

Third.  That  the  defendant,  Salmon  River  Land  Company, 
Limited,  was  at  the  time  of  the  commencement  of  this  action 
and  still  is  a  corporation  organized  and  existing  under  and 
by  virtue  of  the  laws  and  statutes  of  the  state  of  Idaho  and 
is  a  citizen  of  said  state  and  is  the  corporation  designated 
and  provided  for  in  the  contract  between  the  state  of  Idaho 
and  the  defendant.  Twin  Falls  Salmon  River  Land  and  Water 
Company,  and  intended  by  such  contract  to  operate  the  irri- 


FORMAL    PARTS    OF    A    BILL.  483 

gation  works  to  be  constructed  by  the  defendant,  the  Twin 
Falls  Salmon  River  Land  and  Water  Company. 

Fourth.  That  the  defendants,  John  M.  Haines,  W.  L. 
Gifford,  Grace  Sheperd,  Joseph  H.  Peterson  and  Fred.  L. 
Huston,  are  respectively  the  legally  elected,  qualified  and 
acting  Governor,  Secretary  of  State,  Superintendent  of  Public 
Instruction,  Attorney  General  and  Auditor  of  the  state  of 
Idaho,  and  they  are  and  ever  since  on  or  about  the  first  day 
of  January,  A.  D.  1913,  have  been  and  do  constitute  the 
State  Board  of  Land  Commissioners  of  the  state  of  Idaho, 
and  each  and  every  one  of  the  defendants  in  this  paragraph 
of  the  bill  of  complaint  named  were,  at  the  time  of  the  com- 
mencement of  this  action,  and  still  are,  residents  and  citizens 
of  the  state  of  Idaho. 

Fifth.  That  the  defendant,  Commonwealth  Trust  Company 
of  Pittsburg,  was  at  the  time  of  the  commencement  of  this 
action  and  still  is  a  corporation  organized  and  existing  under 
and  by  virtue  of  the  laws  of  the  state  of  Pennsylvania  and  a 
citizen  of  said  state. 

Sixth.  That  the  defendant,  A.  C.  Robinson,  was  at  the 
time  of  the  commencement  of  this  action  and  still  is  a  resident 
and  citizen  of  the  state  of  Pennsylvania. 

(1)  The  forms  on  this  and  the  immediately  succeeding  pages  are  in 
addition  to  those  found  herein  above,  beginning  page  1,  and  are  of  course 
applicable  in  appropriate  cases  whether  the  suit  is  at  law  or  in  equity. 


No.  370. 

Allegations  of  Citizenship  of  State  Public  Service  Com- 
mission. 

The  defendants.  Charles  A.  Reynolds,  Frank  R.  Spinning 
and  Arthur  A.  Lewis,  are  now,  and  for  six  months  last  past 
have  been,  the  duly  appointed,  qualified  and  acting  public  serv- 
ice commissioners  of  the  state  of  Washington,  constituting  the 
public  service  commission  of  the  state  of  Washington ;  and  the 
defendant,  W.  V.  Tanner,  is  now,  and  for  more  than  six 
months  last  past  has  been,  the  duly  elected,  qualified  and  acting 


484  SUITS    IN    EQUITY. 

attorney  general  of  the  state  of  Washington.  Each  of  said  de- 
fendants is  a  citizen  of  the  United  States  and  a  citizen  and  resi- 
dent of  the  state  of  Washington.  The  defendant,  Arthur  A. 
Lewis,  is  a  resident  of  the  eastern  district  of  Washington,  and 
the  other  defendants  are  residents  of  the  western  district  of 
Washington. 


No.  371. 

Allegation  of  Citizenship  and  Amount  Involved  in  Suit  to 
Enjoin  Municipality  from  Collecting  Taxes. 

[Caption.] 

Edwin  H.  Abbot,  Jr.,  who  is  a  resident  of  Cambridge,  Mas- 
sachusetts, and  a  citizen  of  the  state  of  Massachusetts,  brings 
this  his  complaint  against  the  city  of  Milwaukee,  which  is  a 
municipal  corporation,  organized  under  and  by  virtue  of  the 
laws  of  Wisconsin,  and  located  -within  the  eastern  district 
thereof,  and  against  Joseph  P.  Carney,  as  treasurer  of  the  city 
of  Milwaukee,  who  is  a  resident  of  the  city  of  Milwaukee  afore- 
said and  a  citizen  of  the  state  of  Wisconsin,  and  an  inhabitant 
of  the  eastern  district  thereof,  and  against  John  H.  Donahue, 
who  is  a  resident  of  the  city  of  Milwaukee  aforesaid,  a  citizen 
of  the  state  of  Wisconsin,  and  an  inhabitant  of  the  eastern  dis- 
trict thereof,  and  thereupon  the  plaintiff  complains  and  shows : 

I.  That  the  full  name,  citizenship  and  residence  of  each  of 
the  parties  to  this  action  is  as  above  set  forth. 

II.  That  the  grounds  upon  which  the  jurisdiction  of  this 
court  in  this  action  depends  are  that  the  plaintiff  is  a  resident 
and  citizen  of  the  state  of  Massachusetts;  that  the  defendants 
and  each  and  every  of  them  are  citizens  of  the  state  of  Wiscon- 
sin and  residents  of  the  eastern  district  thereof;  that  the  de- 
fendant, city  of  Milwaukee,  has  levied  and  assessed  against 
certain  lands  in  the  city  of  Milwaukee  owned  by  the  plaintiff, 
pretended  taxes  to  the  amount  of  upwards  of  $8,000 ;  that  such 
taxes  and  each  of  them  are  wholly  illegal  and  void,  but  that 
notwithstanding  the  said   defendant,   the  city  of  Milwaukee, 


FORMAL    PARTS    OF   A    BILL.  485 

through  the  said  defendant,  Carney,  its  treasurer,  threatens 
and  is  about  to  sell  the  said  lands  of  this  plaintiff  for  the  non- 
payment of  said  pretended,  illegal  and  void  taxes,  and  will  do 
so  and  thus  create  a  cloud  upon  the  title  of  this  plaintiff  to  said 
lands  unless  enjoined  and  restrained  by  order  of  this  court 
herein ;  that  the  said  defendant,  John  H.  Donahue,  is  the  owner 
and  holder  of  certain  certificates  issued  by  the  commissioner 
of  public  works  of  the  city  of  Milwaukee,  evidencing  the  said 
illegal  and  void  taxes,  and  entitling  him  to  receive  the  amounts 
thereof  when  collected. 


No.  372. 

Allegation  of  State  Suing  as  Parens  Patriae. 

*  *  *  In  consideration  whereof,  and  forasmuch  as  com- 
plainant and  its  citizens  and  residents,  who  except  through 
representation  by  complainant,  have  no  remedy  and  can  have 
adequate  relief  only  in  this  honorable  court,  complainant  on 
its  own  behalf  and  also  as  parens  patriae,  trustee,  guardian  and 
representative  of  that  great  proportion  of  its  citizens,  who  are 
directly  affected  by  the  provisions  of  said  law  (of  another 
state,  defendant)  as  aforesaid,  prays  this  honorable  court  to 
take  cognizance  of  the  several  charges  set  forth  in  the  premises. 


No.  373. 

Averments  of  Citizenship,  Complainants,  Citizens  and  Aliens. 

[Caption.] 

The  complainants  above  named,  Knauth,  Nachod  &  Kuhne, 
make  this  their  amended  bill  of  complaint  (or  whatever  it 
should  be  denominated)  against  the  defendants  above  named 
and  allege,  on  information  and  belief : 

Part  I — Parties. 

1.  The  complainants  are  co-partners  in  business,  doing  busi- 
ness as  international  bankers  and  maintaining  a  banking  house 


486  SUITS    IN    EQUITY. 

at  New  York,  N.  Y.,  and  at  Leipzig,  Germany,  under  the 
firm  name  and  style  of  Knauth,  Nachod  &  Kuhne.  Said  Max 
Jaffe  and  August  Stern  are  citizens  or  subjects  of  Germany 
and  reside  at  Leipzig,  Germany.  Said  William  Knauth  is  a 
citizen  or  subject  of  Germany  and  resides  at  Arrochar,  county 
of  Richmond,  city  and  state  of  New  York.  Said  Arend  H. 
Weingardt  is  a  citizen  or  subject  of  Germany  and  resides  at 
Montclair,  Essex  county.  New  Jersey.  Said  Oscar  L.  Gubel- 
man  is  a  citizen  of  the  state  of  New  Jersey  and  resides  at  West 
Orange,  Essex  county.  New  Jersey.  Said  Rollin  C.  Newton 
is  a  citizen  of  the  state  of  New  York  and  resides  at  Scarsdale, 
Westchester  county,  New  York.  Said  Mary  W.  Knauth  and 
Percival  Kuhne  are  citizens  of  the  state  of  New  York  and 
reside  in  the  county,  city  and  state  of  New  York. 


No.  374. 

Averments  of  Citizenship  of  Defendants,  Trustee  in  Bank- 
ruptcy, Foreign  Corporations  and  Alien. 

[Caption.] 

The  defendant,  J.  A.  E.  Pyle  (whose  first  name  is  unknown 
to  the  complainants),  as  trustee  in  bankruptcy  of  Steele.  Miller 
&  Company,  is  a  citizen  of  the  state  of  Mississippi  and  resides 
at  luka,  Tishomingo  county,  Mississippi,  and  was  duly  elected 
■and  appointed  trustee  in  bankruptcy  of  said  Steele,  Miller  & 
Company  by  the  United  States  district  court  for  the  northern 
district  of  Mississippi,  eastern  division,  and  duly  qualified  as 
such  trustee,  by  giving  the  prescribed  bond,  and  is  still  acting 
as  such  trustee.  The  defendant,  the  Texas  Transport  &  Ter- 
minal Company,  is  a  corporation  organized  under  the  laws  of 
the  state  of  New  Jersey,  but  doing  business  at  New  Orleans. 
Louisiana,  and  elsewhere.  The  defendant,  the  Campagnie 
Generale  Transatlantique,  is  a  corporation  organized  under  the 
laws  of  the  French  republic  and  has  its  home  office  and  prin- 
cipal place  of  business  at  Paris,  France,  but  is  also  doing  busi- 
ness at  New  Orleans,  Louisiana.    The  defendant,  the  Bank  of 


FORMAL    PARTS    OF    A    BILL.  487 

Mulhouse,  is  a  corporation  organized  under  the  laws  of  the 
French  repuWic  and  has  its  home  office  and  principal  place  of 
business  at  Havre,  France.  The  defendant,  Paul  Chardin,  is  a 
citizen  of  tlie  French  republic  and  resides  at  Paris,  France,  but 
is  also  engaged  in  business  at  Havre,  France.  The  defendant. 
Credit  Havrais,  is  a  corporation  organized  under  the  laws  of 
the  French  republic  and  has  its  home  office  and  principal  place 
of  business  at  Havre,  France.  The  defendant,  the  American 
Surety  Company,  of  New  York,  is  a  corporation  organized 
under  the  laws  of  the  state  of  New  York,  and  has  its  home 
office  and  principal  place  of  business  at  New  York,  New  York, 
but  is  also  doing  business  at  New  Orleans,  Louisiana. 


No.  375. 

Allegations  of  Capacity  to  Sue  for  Indian  Tribes. 

[Caption.] 

The  United  States  of  America  by  D.  H.  Linebaugh,  United 
States  attorney  for  the  eastern  district  of  Oklahoma,  by  direc- 
tion of  the  Honorable  James  C.  McReynolds,  attorney  general 
of  the  United  States,  presents  this  its  bill  in  its  own  behalf  and 
for  and  on  behalf  of  the  Creek  nation  of  Indians  in  the  state  of 
Oklahoma,  against  the  Cimarron  River  Bed  Oil  &  Gas  Com- 
l)any,  the  Cimarron  River  Oil  &  Gas  Company,  the  Number 
One  Oil  Compainy,  and  John  Henry,  W.  T.  Barrett  and  J.  C. 
Elliot,  as  defendants,  each  of  the  said  defendants,  Cimarron 
River  Bed  Oil  &  Gas  Company,  Cimarron  River  Oil  &  Gas 
Company  afid  Number  One  Oil  Company,  being  a  corporation 
duly  organized  and  existing  under  and  by  virtue  of  the  laws 
of  the  state  of  Oklahoma,  and  being  a  citizen  of  said  state  and 
being  an  inhabitant  of  and  having  its  principal  place  of  busi- 
ness within  the  eastern  judicial  district  thereof ;  and  the  defend- 
ants, John  Henry  and  W.  T.  Barrett,  being  residents  and  citi- 
zens of  the  state  of  Oklahoma  and  of  the  western  judicial  dis- 
trict thereof,  and  the  defendant,  J.  C.  Elliott,  being  a  resident 
and  citizen  of  the  state  of  Oklahoma  and  of  the  eastern  judicial 


488  SUITS    IN    EQUITY. 

district  thereof,  and  thereupon  plaintiff  complains  and  says: 

I.  That  the  Choctaw,  Chickasaw,  Cherokee,  Creek  and  Semi- 
nole tribes  or  nations  of  Indians  have  for  more  than  seventy- 
five  years  last  past  occupied  that  portion  of  the  territory  now 
embraced  in  the  eastern  judicial  district  of  the  state  of  Okla- 
homa and  which  formerly  comprised  what  was  known  as  In- 
dian Territory;  that  said  above  named  tribes  or  nations  of  In- 
dians form  and  constitute  a  particular  and  distinct  class  of 
Indians  known  and  designated  as  the  five  civilized  tribes,  and 
are  distinguished  from  the  other  tribes  or  nations  of  Indians 
within  the  jurisdiction  and  under  the  care,  protection  and  con- 
trol of  the  United  States ;  that  said  above  named  tribes  or  na- 
tions of  Indians  are  referred  to  and  designated  as  the  "Five 
Civilized  Tribes"  in  many  of  the  acts  of  Congress  passed  in 
relation  thereto ;  and  that  each,  every  and  all  of  said  tribes  or 
nations,  when  so  designated  and  referred  to,  are  included  in 
the  provisions  of  said  acts  of  Congress  as  though  each,  every 
and  all  of  said  tribes  or  nations  were  separately  and  particu- 
larly named  therein. 

II.  That  plaintiff  under  and  by  virtue  of  the  several 
acts  of  Congress  passed  in  relation  to  the  affairs  and  property 
of  the  said  above-named  tribes  has  always  assumed  the  rela- 
tion of  guardian  and  trustee  of  the  tribal  property  of  said 
nations  of  Indians;  that  under  and  by  virtue  of  the  several 
acts  of  Congress  above  referred  to  and  particularly  of  the 
Act  of  March  1,  1901  (31  Stat.  L.  861)  ;  the  Act  of  June  30, 
1902  (32  Stat.  L.  500) ;  the  Act  of  April  26,  1906  (34  Stat. 
L.  137),  and  the  Act  of  May  27,  1908  (35  Stat.  L.  312), 
complainant  is  charged  with  the  duty  of  exercising  and  has 
always  exercised  supervision  and  control  over  the  tribal  prop- 
erty and  unallotted  lands  of  said  Creek  nation  of  Indians  in 
Oklahoma,  and  that  at  all  times  herein  mentioned  your  orator 
has  maintained  and  still  maintains  a  United  States  Indian 
superintendent  and  a  commissioner  to  said  five  civilized  tribes 
at  Muskogee,  Oklahoma,  for  the  purpose  of  exercising  super- 
vision and  control  over  the  tribal  property  and  unallotted 
lands  of  said  Creek  nation  of  Indians  in  Oklahoma. 


FORMAL    PARTS    OF    A    BILL.  489 

III.  That  all  of  the  lands  hereinafter  described  and  referred 
to  lie  within  the  territorial  limits  of  the  Creek  nation  of  In- 
dians in  what  is  now  Creek  county  in  the  state  of  Oklahoma 
and  in  the  eastern  judicial  district  of  said  state,  and  lie  be- 
tween the  meander  lines  and  between  and  below  the  high- 
water  marks  of,  and  form  a  portion  of  the  bed  of,  the  Cimar- 
ron river,  which  is  a  meandered  and  non-tidal  stream;  that 
said  lands  were  a  part  of  the  lands  conveyed  to  the  Creek 
nation  of  Indians  by  the  United  States  of  America,  as  evi- 
denced by  a  certain  patent  of  August  11,  1852,  a  copy  of 
which  is  hereto  attached  and  made  a  part  hereof,  marked 
Exhibit  A;  and  the  said  Creek  nation  is  the  owner  of  the 
said  lands  under  and  by  virtue  of  the  said  grant  from  the 
United  States  of  America  and  the  several  treaties  theretofore 
and  thereafter  concluded  between  that  government  and  the 
said  Creek  nation ;  that  the  said  lands  are  and  have  been  at 
all  the  times  herein  mentioned  a  part  of  the  unallotted  lands 
of  the  said  Creek  nation  and  were  not  surveyed  or  allotted 
in  severalty  to  the  members  of  said  nation  under  the  act  of 
Congress  above  referred  to;  and  that  the  said  lands  are 
owned  in  common  by  the  citizens  of  said  Creek  nation  and 
are  therefore  a  part  of  the  tribal  lands  belonging  to  said 
nation  under  the  supervision  and  control  of  plaintiff  by 
virtue  of  the  acts  of  Congress  above  referred  to  and  others 
from  time  to  time  passed  and  approved,  and  by  virtue  of  the 
several  treaties  from  time  to  time  concluded  between  the 
United  States  of  America  and  the  Creek  nation  of  Indians. 


No.  376. 

Allegation  Showing  Why  Named  Persons  Are  Not  Made 

Parties. 

The  members  of  the  firm  of  Steele,  Miller  &  Company  are 
not  made  parties  to  this  bill  because  they  are  not  within  the 
eastern    district    of    Louisiana,    and    because,    though    proper 


490  SUITS    IN    EQUITY. 

parties,  they  are  not  necessary  parties.  They  claim  no  right, 
title  or  interest  in  the  subject-matter  hereof  and  any  interest 
they  may  have  had,  before  their  adjudication  of  bankruptcy, 
is  held  by  the  defendant,  Pyle,  as  trustee.  The  members  of 
the  firm  of  Scheuch  &  Company  are  not  made  parties  to  this 
bill  because  they  are  not  within  the  eastern  district  of  Louisi- 
ana and  because,  though  proper  parties,  they  are  not  neces- 
sary parties.  They  claim  no  right,  title  or  interest  in  the 
subject-matter  hereof  and  have  transferred  any  interest  they 
may  ever  have  had  to  the  defendants,  the  Bank  of  Mulhouse 
and  Paul  Chardin  and  the  Credit  Havrais. 

(Signature  of  Counsel.) 


No.  377. 

Prayer  for  the  Production  of  Deeds,  Papers,  etc.(l) 

And  that  the  said  defendants  may  set  forth  a  list,  or  sched- 
ule, and  description  of  every  deed,  book,  account,  letter,  paper 
or  writing  relating  to  the  matters  aforesaid,  or  either  of 
them;  or  wherein  or  whereupon  there  is  any  note,  memoran- 
dum or  writing  relating  in  any  manner  thereto,  which  now 
are,  or  ever  were,  in  their  or  either,  and  which,  of  their  pos- 
session or  power,  and  may  deposit  the  same  in  the  office  of 
the  clerk  [^or,  in  the  hands  of  one  of  the  masters]  of  this 
honorable  court,  for  the  usual  purposes;  and  otherwise  that 
the  said  defendants  may  account  for  such  as  are  not  in  their 
possession  or  power. 

(1)  Dan.  Ch.  Pr.  p.  1888. 

No.  378. 

Prayer  for  an  Accounting  of  Money  Had  and  Received. 

Plaintiff  prays  that  the  defendant  may  set  forth  an  account 
of  all  and  every  sum  and  sums  of  money  received  by  them, 
or  either  of  them,  or  by  any  person  or  persons  by  their,  or 
either  of  their,  order,  or  for  their,  or  either  of  their  use,  for 
or  in  respect  of  the  said   [as  the  case  stated  in  the  bill  may 


FORMAL    PARTS   OF    A    BILL.  491 

be],  and  when  and  from  whom  and  from  what  in  particular 
all  and  every  such  sums  were  respectively  received,  and  how 
the  same  respectively  have  been  applied  or  disposed  of. 


No.  379. 

Prayer  for  an  Accounting  Between  Partners. 

Plaintiff  prays  that  an  account  may  be  taken  of  all  and 
every  the  said  late  co-partnership  dealings  and  transactions 
until  the  time  of  the  expiration  thereof,  and  also  an  account 
of  the  moneys  received  and  paid  by  plaintiff  and  the  said 
defendant,  respectively,  in  regard  thereto,  and  that  the  said 
C.  D.  may  be  directed  to  pay  to  plaintifif  what,  if  anything, 
shall,  upon  such  account,  appear  to  be  due  to  him,  plaintiff 
being  ready  and  willing  and  hereby  offering  to  pay  to  the 
said  defendant.  C.  D.,  what,  if  anything,  shall  appear  to  be 
due  him  from  the  said  joint  concern.  And  that  some  proper 
person  may  be  appointed  to  receive  and  collect  all  moneys 
which  may  be  coming  to  the  credit  of  the  said  late  co-partner- 
ship. And  that  the  said  defendant,  C.  D.,  may  in  the  mean- 
time be  restrained  by  the  order  and  injunction  of  this  honor- 
able court  from  collecting  or  receiving  any  of  the  debts  due 
and  owing  to  the  said  late  co-partnership. 


No.  380. 
Prayer  for  Winding  up  a  Partnership. 

Plaintiff  prays  that  the  said  land  and  buildings  in  [describe 
them]  may  be  adjudged  and  decreed  to  be  partnership  prop- 
erty and  assets  of  the  said  late  firm  of  A.  B.  &  Company, 
and  that  the  same  may  be  ordered  to  be  sold  under  the  direc- 
tion of  this  honorable  court  for  the  purpose  of  winding  up 
the  concern,  and  that  a  receiver  of  all  the  co-partnership  assets 
and  property  now  unadministered  by  plaintiff  may  be  ap- 
pointed, and  that  proper  and  just  accounts  may  be  taken  be- 
tween the  parties  touching  the  matters  in  question;  and  that 


492  SUITS   IN    EQUITY. 

the  estate  of  the  said  S.  B.,  deceased,  may  be  charged  with  a 
fair  rent  for  said  dwelling  house  during  the  time  it  was  in 
his  occupation,  and  for  such  further  time,  if  any,  as  may 
seem  meet  to  this  honorable  court ;  and  that  all  the  affairs  and 
concerns  of  said  late  firm  of  A.  B.  &  Company  may  be  wound 
up,  adjusted  and  closed,  under  the  direction  of  this  honorable 
court,  and,  after  payment  of  all  the  debts  of  the  concern  and 
the  partnership  balance  which  may  be  found  due  to  plaintiff 
out  of  the  assets,  that  the  surplus  may  be  divided  between 
plaintiff  and  the  administrator  or  heirs  of  the  said  S.  B., 
according  to  their  respective  rights  therein,  and  as  to  justice 
and  equity  may  appertain. 

And  that  in  the  meantime  said  administrator,  widow  and 
heirs  of  said  S.  B.  may  be  restrained  and  enjoined  -from  pro- 
ceeding to  take  any  steps  to  sell  said  real  property  or  interest 
therein,  or  from  any  proceeding  touching  said  real  estate  or 
any  of  it,  adverse  to  the  claims  and  interests  of  plaintiff  until 
the  relative  rights  and  interests  therein  of  plaintiff  and  the 
said  defendants  may  be  settled  and  determined.  , 


No.  381. 

Prayer  for  an  Account,  and  Distribution. 

Plaintiff  prays  that  an  account  may  be  taken  of  the  per- 
sonal estate  of  the  intestate  come  to  the  hands  of  the  defend- 
ant, or  of  any  person  or  persons  by  his  order  or  for  his  use. 

That  an  account  may  be  taken  of  the  debts  and  funeral 
expenses  of  the  intestate;  that  the  clear  residue  of  the  per- 
sonal estate  of  the  intestate  may  be  ascertained,  and  that  one 

equal part  of  such  residuary  estate  may  be  decreed  to  be 

paid  to  each   of  your  orators,   and  that   another  part 

thereof  may  be  decreed  to  be  paid  to  the  defendant  and  to 
each  of  them,  the  said  E.  F.  and  G.  H. 


FORMAL   PARTS   OF   A   BILL.  493 

No.  382. 

Prayer  for  an  Accounting  by  Agent. 

Plaintiff  prays  that  an  account  may  be  taken  of  all  sums 
of  money  received  by  or  come  to  the  hands  of  the  defendant 
as  such  agent  of  the  plaintiff  as  aforesaid,  for  or  on  account 
of  or  for  use  of  the  plaintiff,  and  of  the  application  thereof 
and  of  all  dealings  and  transactions  of  the  defendant  as  the 
plaintiff's  agent;  and  that  the  defendant  may  be  decreed  to 
pay  to  the  plaintiff  what,  on  taking  such  accounts,  shall  be 
found  due  from  the  defendant  to  the  plaintiff,  and  to  deliver 
up  to  the  plaintiff  all  documents  in  the  defendant's  possession 
or  power  belonging  to  the  plaintiff;  that  the  defendant  may 
pay  the  costs  of  this  suit. 


No.  383. 

Prayer  for  an  Accounting  and  Injunction  to  Restrain  Cutting 

Lumber. 

Plaintiff  prays  that  an  account  may  be  taken  by  and  under 
the  direction  and  decree  of  this  honorable  court  of  the  timber 
and  other  product  removed  from  said  lands  or  any  thereof 
by  the  said  defendants,  or  any  or  either  of  them,  or  with  their 
permission  or  authority,  and  of  the  rents  and  profits  received 
by  the  said  defendants,  or  any  or  either  of  them,  from  said 
lands  or  any  portion  thereof. 

And  that  said  defendants  may  be  respectively  decreed  to 
pay  to  plaintiff  the  value  of  said  timber  or  other  products 
so  removed  from  said  lands,  with  interest  from  the  date  of 
^uch  removal ;  and  the  amount  received  for  rents  and  profits, 
with  interest  from  the  date  of  the  receipt  thereof. 

And  that  said  defendants,  and  each  and  every  of  them,  be 
perpetually  restrained  and  enjoined  from  hereeafter  making 
any  claim  to  said  premises  or  in  any  manner  intermeddling 
therewith  or  trespassing  thereon  or  removing  any  timber  or 
other  product  therefrom. 


494  SUITS   IN   EQUITY. 

No.  384. 

Prayer  for  an  Accounting  and  Damages  for  Infringement  of 

Copyright. 

That  the  defendant  be  required  by  decree  of  this  honorable 
court  to  account  for  and  pay  over  to  plaintiff  such  gains  and 
profits  as  have  accrued  or  arisen  or  have  been  earned  or  re- 
ceived by  said  defendant,  and  all  of  such  gains  and  profits  as 
would  have  accrued  to  this  plaintiff  but  for  the  unlawful  do- 
ings of  said  defendant,  and  all  damages  the  plaintiff  may 
have  suffered  or  sustained  thereby;  and  that  this  honorable 
court  may  increase  the  actual  damages  so  assessed  against 
the  defendant  to  a  sum  equal  to  three  times  the  amount  of 
such  assessment. 


No.  385. 

Prayer  for  Damages  against  Agent  for  Mismanagement. 

Plaintiff  prays  that  they,  the  said  agents,  E.  F.  and  G.  H., 

may  be  decreed  to  pay  to  plaintiff  the  said  sums  of  $ 

and  $ ,  and  such  losses,  damages  and  interest  as  plaintiff 

has  suffered  by  reason  of  the  premises,  and  that  plaintiff  may 
have  such  other  relief  as  the  nature  of  his  case  may  require; 
and  that  the  said  E.  F.  and  G.  H.  may,  if  they  can,  show 
why  plaintiff  should  not  have  the  relief  hereby  prayed. 


No.  386. 

Prayer  for  an  Accounting  for  Infringing  a  Patent  for 
Invention. 

Plaintiff  prays  that  the  said  defendants  may  be  compelled 
to  account  for  and  pay  to  him  the  profits  by  them  acquired, 
and  the  full  amount  of  damages  suffered  by  plaintiff  by 
reason  of  their  aforesaid  unlawful  acts,  together  with  such 
increase  upon  the  actual  damages,  according  to  the  provisions 
of  law  relating  thereto  as  may  seem  to  this  honorable  court 
meet  and  just. 


FORMAL    PARTS    OF   A   BILL.  495 

No.  387. 

Prayer  for  an  Accounting  of  Rents  and  Profits  of  a  Testator's 

Real  Estate. 

Plaintiff  prays  that  the  said  defendants  may  set  forth  a 
full,  true  and  just  rental  and  particular  account  of  the  real 
estates  whereof  or  whereto  the  said  testator  was  seized  or 
entitled  in  fee  simple  at  the  time  of  his  death,  and  also  a  full, 
true  and  particular  account  of  all  and  every  sum  and  sums 
of  money  which  has  or  have  been  received  by  them  or  either 
of  them,  or  any  other  person  or  persons  by  their,  or«either  of 
their,  order,  or  for  their  or  either  of  their  use,  for  or  in  re- 
spect of  the  rents  and  profits  of  the  said  estates  or  any  part 
thereof;  and  whether  any  and  which  of  said  estates,  or  any 
part  or  parts  thereof,  have  or  has  not  been  disposed  of  or 
sold,  and  at  what  price  or  prices,  respectively,  and  when  and 
to  whom ;  and  whether  such  price  or  prices,  respectively,  have 
or  has  not  been  paid,  and  to  whom;  and  if  not,  why  not. 


No.  388. 

Prayer  for  an  Account  of  Personal  Estate  of  a  Testator. 

Plaintiff  prays  that  said  defendants  may  discover  and  set 
forth  a  full,  true  and  particular  account  of  all  and  singular 
the  personal'  estate  and  effects  of  the  said  testator,  and  of 
every  part  thereof,  which  has  been  possessed  by,  or  come  to, 
the  hands  of  the  said  defendants,  or  either  of  them,  or  to  the 
hands  of  any  other  person  or  persons  by  their,  or  either  of 
their,  order,  or  for  their,  or  either  of  their,  use;  with  the 
particular  nature,  qualities,  quantities  and  true  and  utmost 
values  thereof,  and  of  every  part  thereof,  respectively,  and 
how  the  same  and  every  part  thereof  has  been  applied  and 
disposed  of;  and  whether  any,  and  what  part  thereof,  now 
remains  unapplied  and  undisposed  of,  and  why;  and  whether 
any  and  what  part  of  such  personal  estate  remains  outstand- 
ing" to  any  and  what  amount,  and  why;  and  that  the  said 
defendants  may  also  set  forth  an  account  of  the  debts  due 


496  SUITS    IN    EQUITY. 

from  the  said  testator,  and  of  his  funeral  and  testamentary- 
expenses  and  legacies,  and  whether  any  and  which  of  such 
debts  are  outstanding,  and  why. 


No.  389. 

Prayer  in  Bill  to  Quiet  Title. 

Plaintifif  prays  that  the  alleged  title  of  the  said  C.  D.  and 
the  C.  D.  Company  and  the  deeds  thereof  herein  set  forth 
and  referred  to  so«far  as  they  refer  to  the  premises  of  plain- 
tiff herein  described  or  any  part  thereof,  may  be  decreed  to 
be  null  and  void  and  of  no  force  and  effect,  and  that  the  cloud 
arising  therefrom  on  the  title  of  plaintiff  may  be  removed, 
and  that  plaintiff  is  the  owner  in  fee  of  said  property. 


No.  390. 

Prayer  in  Bill  to  Quiet  Title. 

(Another  Form.) 

Plaintiff  prays  that  your  honors  may  adjudge  and  decree 
that  the  alleged  claims  of  the  defendants,  and  each  of  them, 
are  invalid  and  void;  that  the  defendants  have  not,  nor  has 
either  of  them,  any  estate  or  interest  in  the  said  property,  or 
in  any  part  thereof;  that  plaintiff  Is  the  owner  in  fee  of  said 
property,  and  that  the  defendants,  and  each  and  every  of 
them,  be  forever  barred  from  asserting  or  claiming  any  estate 
or  interest  therein. 


No.  391. 

Prayer  for  the  Foreclosure  of  a  Mortgage. 

Plaintiff  prays  that  the  usual  decree  may  be  made  for  the 
sale  of  the  mortgaged  premises  aforesaid,  and  for  the  pay- 
ment of  the  amount  due  to  himself  for  principal  and  interest 
upon  the  said  bond  and  mortgage  and  his  costs  of  this  suit. 
and  that  the  said  defendants,  and  all  persons  claiming  under 


FORMAL    PARTS    OF    A    BILL.  497 

them  subsequent  to  the  commencement  of  this  suit,  and  all 
other  persons,  although  not  parties  to  this  suit,  who  have  any 
liens  by  judgment  or  decree  upon  the  mortgaged  premises 
subsequent  to  the  said  mortgage  of  plaintiff,  or  any  liens  or 
claims  thereon  by  or  under  any  such  subsequent  judgment  or 
decree,  either  as  purchasers,  incumbrancers  or  otherwise,  may 
be  barred  and  foreclosed  of  all  equity  of  redemption  in  the 
said  premises. 


No.  392. 

Prayer  for  Foreclosure  of  Mortgage. 
(Another  Form.) 

Plaintiff  prays  that  an  account  may  be  taken  by  and  under 
the  direction  of  this  honorable  court  of  what  is  due  for  the 
principal  and  interest  on  the  said  mortgage,  and  that  the  said 
defendants,  or  some  of  them,  may  pay  unto  the  plaintiff  the 
money  which  shall  be  found  due  to  him  by  a  short  day  to  be 
appointed  for  that  purpose  by  this  honorable  court,  or  in  de- 
fault thereof  that  all  the  said  defendants  and  all  persons 
claiming,  or  to  claim  by,  from  or  under  them,  or  any  of  them, 
may  be  absolutely  barred  and  foreclosed  of  and  from  all 
right  and  equity  of  redemption  of,  in,  and  to  the  said  prop- 
erty, and  every  part  thereof,  or  if,  on  any  account,  the  plain- 
tiff is  not  entitled  to  any  such  foreclosure,  then  that  the  said 
property  may  be  sold  and  all  proper  parties  may  join  therein, 
and  that  the  money  so  due  to  the  plaintiff  may  be  paid  to  him 
out  of  the  money  which  shall  be  raised  by  such  sale. 


No.  393. 

Prayer  to  Foreclose  a  Railroad  Mortgage  and  for  Injunction. 

Plaintiff  prays  that  the  said  mortgage  may  be  decreed  to 
be  a  lien  upon  all  the  property  mentioned  and  described  there- 
in, and  upon  all  the  property,  real,  personal  and  mixed,  rights, 
franchises,   lands,   titles,    railroad  branches,   extensions,   tolls. 


498  SUITS    IN    EQUITY. 

incomes,  rents,  issues  and  profits  of  the  said  railroad  com- 
pany secured  by  said  mortgage,  and  that  said  railroad  com- 
pany may  be  decreed  to  pay  unto  plaintiff  for  the  holders 
of  the  bonds  described  by  said  mortgage,  whatever  may 
be  due  for  interest  on  the  bonds  secured  by  tlie  afore- 
said mortgage,  together  with  all  the  costs  and  expenses 
in  this  behalf  incurred  and  expended,  and  in  default  thereof 
that  the  defendant  railroad  company  above  named,  and  all 
persons  claiming  under  it,  may  be  forever  barred  and  fore- 
closed of  and  from  all  equity  of  redemption  and  claim  of,  in 
and  to  all  the  property,  rights  and  franchises  covered  by  said 
mortgage,  and  every  part  and  parcel  thereof;  and  that  all 
and  singular  the  said  mortgaged  property,  with  the  appur- 
tenances, property  and  effects,  rigbts,  immunities  and  fran- 
chises in  said  mortgage  mentioned,  may  be  sold  under  a  de- 
cree of  this  honorable  court:  that  an  account  may  be  taken 
of  the  bonds  secured  by  said  mortgage  and  of  the  amount  due 
on  said  bonds  for  interest;  and  that  the  trustee,  after  paying 
all  reasonable  costs,  charges  and  expenses  incurred  by  it  in 
the  execution  of  its  trust,  including  taxes,  counsel  and  attor- 
ney's fees,  and  indemnifying  itself  from  all  liability  in  th*e 
premises,  shall  apply  so  much  of  the  proceeds  of  said  sale  as 
may  be  necessary  to  the  payment  of  the  interest  then  unpaid 
on  the  bonds  then  outstanding,  ratably  to  the  holders  thereof, 
without  discrimination  or  preference,  and  shall  pay  over  any 
surplus  to  the  railroad  company  or  to  whomsoever  shall  be 
entitled  to  receive  the  same;  that  during  the  pendency  of  this 
suit  a  receiver  or  receivers  may  be  appointed  according  to  the 
course  and  practice  of  this  court,  u^ith  the  usual  powers  of 
receivers  in  like  cases,  of  all  the  property,  equitable  interests, 
things  in  action,  effects,  moneys,  receipts,  earnings,  rights, 
privileges,  franchises,  and  immunities  of  the  said  railroad 
company  and  its  tolls,  incomes,  rents  and  issues,  and  of  all 
other  property  included  in  and  covered  by  said  mortgage, 
within  the  jurisdiction  of  this  honorable  court;  and  that  the 
said  defendant  railroad  company,  and  all  other  persons  hav- 


FORMAL    PARTS    OF    A    BILL.  499 

ing  possession  thereof,  may  be  decreed  to  make  such  transfer 
or  conveyance  to  such  receiver  or  receivers  when  appointed 
and  to  the  purchaser  of  said  property  at  any  sale  which  may 
hereafter  be  decreed  to  be  made  herein,  as  may  be  necessary 
and  proper  to  put  them  or  any  of  them  in  possession  and  con- 
trol of  said  property :  that  a  writ  of  injunction  issue  out  of 
and  under  the  seal  of  this  honorable  court  directing,  com- 
manding, enjoining  and  restraining  the  said  defendant  rail- 
road company  and  its  officers,  directors  and  agents,  and  all 
other  persons  whomsoever,  from  interfering  with,  transfer- 
ring, selling  and  disposing  of  any  property  of  the  defendant, 
or  from  taking  possession  of,  levying  upon  or  attempting  to 
sell  by  judicial  process  or  otherwise,  any  portion  of  the 
property  of  said  defendant  railroad  company. 


No.  394. 

Prayer  for  Redemption   of   Mortgage  —  Mortgagee  in  Pos- 
session. 

Plaintiff  prays  that  an  account  may  be  taken  of  what,  if 
anything,  is  due  to  the  said  defendant  for  principal  and  in- 
terest on  the  said  mortgage,  and  that  an  account  may  also  be 
taken  of  the  rents  and  profits  of  the  said  mortgaged  premises 
which  have  been  possessed  or  received  by  the  said  defendant 
or  by  any  other  person  or  persons  by  his  order  or  for  his 
use,  or  which,  without  his  willful  default  or  neglect,  might 
have  been  received;  and,  if  it  shall  appear  that  the  said  rents 
and  profits  have  been  more  than  sufficient  to  satisfy  the  prin- 
cipal and  interest  of  the  said  mortgage,  then  that  the  residue 
thereof  may  be  paid  over  to  the  plaintifiF,  and  that  the  plain- 
tiff may  be  permitted  to  redeem  the  said  premises,  the  plain- 
tiff being  ready  and  willing  and  hereby  offering  to  pay  what, 
if  anything,  shall  appear  to  remain  due  in  respect  to  the  prin- 
cipal and  interest  on  the  said  mortgage ;  and  that  the  said 
defendant  may  be  decreed  to  assign  and  deliver  up  possession 
of  the  said  mortgaged  premises  to  the  plaintiff,  or  to  such 


500  *  SUITS    IN    EQUITY. 

person  as  he  shall  direct,  free  from  all  incumbrances  made  by 
him  or  by  any  person  claiming  under  him,  and  may  deliver 
over  to  the  plaintiff  all  deeds  and  writings  in  his  custody  or 
power  relating  to  the  said  mortgaged  premises. 


No.  395. 

Prayer  for  Redemption  of  Personal  Property. 

Plaintiff  prays  that  an  account  may  be  taken  for  what  is 
due  to  the  said  defendant  for  principal  and  interest  in  respect 

of  the  said  loan  of  $ ,  and  that,  upon  payment  thereof  by 

the  plaintiff,  the  said  defendant  may  be  decreed  to  deliver 
over  to  the  plaintiff  the  said  goods  so  deposited  with  him 
as  aforesaid. 


No.  396. 

Prayer  for  Injunction  (General  Form). 

Plaintiff  prays  that  your  honors  grant  unto  plaintiff  your 
writ  of  injunction  commanding  said  C.  D.,  and  all  persons 
claiming  to  act  under  his  authority,  direction  or  control,  to 
absolutely  desist  and  refrain  frojn  [state  acts  to  be  enjoined], 
until  such  time  as  your  honors  shall  appoint  and  direct  and 
order  herein ;  and  that  upon  such  hearing  the  writ  herein 
prayed  for  be  made  and  confirmed  until  the  final  determina- 
tion of  this  suit,  and  that  thereupon  the  said  injunction  may 
be  made  perpetual. 


No.  397. 

Prayer  for  Injunction  to  Restrain  City  from  Tearing  up  Rail- 
road Tracks. 

Plaintiff  prays  that  pending  the  final  determination  of  the 
subject-matter  hereof,  a  preliminary  injunction  or  restraining 

order  issue,  restraining  the  said  city  of  ,   its  legislative 

council,  and  the  members  of  its  board  of  police  and  fire  com- 
missioners, and  the  supervisors  of  public  works  hereinabove 


FORMAL    PARTS    OF    A    BILL,  501 

named,  from  in  any  way  interfering  with  complainant  in  its 

occupation  and  use  of  street,  or  in  its  maintaining  the 

railroad  tracks  now  constructed  and  laid  thereon. 

That  said  defendants  be  enjoined  from  removing  or  at- 
tempting to  remove  the  whole  or  any  part  of  said  tracks  now 
on street,  and  from  compelling  or  attempting  to  com- 
pel, by  any  process,  authority  or  action  whatever,  this  com- 
plainant or  any  of  its  agents  or  employes  to  remove  the  whole 
or  any  part  of  said  railway  track,  until  the  final  termination 
of  this  cause ;  and  that,  on  final  hearing,  this  injunction  be 
made  perpetual. 

That  a  preliminary  mandatory  injunction   issue,   requiring 

and   compelling   the   city   of  ,    and   the   officials   thereof 

hereinbefore  named,  to  put  down  and  restore  the  said  track, 
so  torn  up  and  removed  by  them,  to  the  condition  in  which  it 
was  at  the  time  they  began  work  thereon,  in  order  that  the 
status  of  the  subject-matter  of  this  litigation  may  remain  un- 
changed until  the  final  disposition  of  this  cause.  If  the  court 
should  be  of  opinion  that  a  mandatory  injunction  should  not 

be  issued  requiring  the  city  of  to  restore  said  street  to 

the  condition  it  was  in  at  and  before  the  time  of  the  wrongs 
complained  of  herein,  then  complainant  prays  that  on  final 
hearing  a  decree  may  be  entered  herein,  requiring  and  com- 
pelling said  city  of ,  and  the  municipal  authorities  there- 
of, to  so  replace  and  restore  the  said  tracks  so  removed  by 
them  to  its  former  condition. 


No.  398. 

Prayer  for  Injunction  to  Enjoin  Mining. 

May  it  please  your  honors  to  grant  unto  plaintiff  a  writ  of 
injunction  pendente  lite,  issuing  out  of  and  in  accordance 
with  the  rules  and  practice  of  this  honorable  court,  to  be 
directed  to  the  said  defendant,  C.  D.  Company,  to  restrain  it, 
its  agents,  servants,  employes  and  confederates  from  entering 
into  or  upon  the  mine  or  mines,  mining  ground,  lode,  dips, 


502  SUITS    IN    EQUITY. 

drifts,  cuts,  excavations,  or  works,  or  upon  any  part  of  the 
land,  property  and  premises  hereinbefore  particularly  de- 
scribed, and  from  working  or  mining  thereon,  or  making  or 
continuing  any  cut,  opening  or  excavation  on  or  in  said  min- 
ing ground,  or  any  part  thereof,  any  mineral,  mineral  deposit, 
ore,  rock,  or  earth,  or  any  mineral  substance  whatever, 
whether  the  same  be  in  place  or  heretofore  severed  from  the 
freehold,  and  from  in  any  manner  hindering  or  obstructing 
plaintiff  or  his  agents,  servants  or  employes,  or  any  or  either 
of  them,  in  working  or  mining  upon  said  premises,  and  from 
in  any  manner  interfering  with  said  premises,  or  with  any- 
thing thereon ;  as  also  a  restraining  order  to  the  same  effect 
until  an  application  for  such  injunction  can  be  heard,  and 
that  at  the  final  hearing  such  injunction  may  be  made  per- 
petual. 


No.  399. 

Allegations  In  Seeking  Injunctive  Relief  against  Rate  Order 
of  State  Public  Utilities  Commission. 

That  these  plaintiffs  are  prevented  and  intimidated  from 
putting  into  effect  a  schedule  of  reasonable  rates  for  gas  sup- 
plied to  all  points  in  Missouri,  because  of  the  highly  excessive 
and  unusually  severe  penalties  provided  in  the  aforequoted 
penalty  statute  of  the  state  of  Missouri,  and  because  of  the 
suspension  by  the  said  public  service  commission  of  Missouri 
of  all  proposed  schedules,  and  the  announced  policy  of  said 
commission,  which  it  has  adhered  to,  to  suspend  all  rates  and 
schedules  of  rates  which  are  higher  than  the  rates  charged  in 
the  border  cities  of  Kansas.  That  under  the  provisions  of 
said  penalty  statute,  if  plaintiff  receivers  should  raise  the 
schedule  of  rates  to  be  collected  and  upon  a  judicial  investi- 
gation into  their  right  to  do  so,  it  should  be  determined  that 
plaintiff  receivers'  raise  of  said  rates  was  not  valid,  then  the 
fines  and  penalties  provided  for  failure  to  conform  to  said 
orders  of  said  commission  of  Missouri,  at  the  maximum  basis 


FORMAL   PARTS   OF   A   BILL.  503 

thereof  for  the  period  of  one  year  would  approximate  the 
enormous  and  the  prohibitory  sum  of  $29,272,540,000.  In 
fact,  for  the  year  from  January  1,  1916,  to  January  1,  1917, 
the  fines  and  penalties  which  might  be  imposed  upon  these 
plaintiffs  under  the  conditions  aforesaid  would  aggregate  the 
exorbitant  and  confiscatory  sum  of  $29,272,540,000.  In  this 
connection  these  plaintiff  receivers  state  that  they  furnish  gas 
through  the  distributing  companies  to  80,196  consumers  per 
day  in  the  state  of  Missouri. 

Because  of  the  constraint  and  intimidation  of  said  unusual 
penalties  these  plaintiffs  have  been  forced  to  keep  in  effect  the 
requirements  and  schedules  prescribed  by  said  public  service 
commission  of  the  state  of  Missouri  from  time  to  time,  and 
the  fines  and  penalties  provided  for  failure  to  conform  to  said 
orders  are  so  unusual  and  enormous  as  to  force  upon  the 
plaintiffs  an*  abandonment  of  their  right  to  act  independently 
of  said  void  and  illegal  orders,  and  by  virtue  of  such  facts 
said  orders  of  said  public  service  commission  are  void  and 
unconstitutional  as  depriving  these  plaintiffs  of  their  property 
without  due  process  of  law  in  contravention  of  the  fourteenth 
amendment  to  the  Constitution  of  the  United  States.  In  this 
connection  plaintiffs  allege  that  the  penalties  provided  for  the 
failure  to  conform  to  said  order  of  the  said  public  service 
commission  are  so  unusual,  oppressive  and  unreasonable  that 
the  said  plaintiffs  are  thereby  precluded  from  the  privilege  of 
asserting  their  rights  independently  and  challenging  in  the 
courts  the  validity  of  said  orders  except  at  the  risk  and  with 
tlie  chance  of  becoming  subject  to  the  unusual  and  excessive 
penalties  aforementioned  as  the  result  of  which  situation 
these  plaintiffs  are  denied  the  equal  protection  of  the  law  in 
contravention  of  the  fourteenth  amendment  to  the  Constitu- 
tion of  the  United  States. 

Adequate  relief  at  law  from  this  situation  would  not  be 
available  to  the  plaintiffs  and  plaintiff's'  resources  and  efforts 
would  be  absorbed  in  unnecessary  and  highly  burdensome 
litigation.     Because  of  which  facts  the  said  Kansas  Natural 


504  SUITS    IN    EQUITY. 

Gas  Company's  properties  would  be  needlessly  appropriated 
without  due  process  of  law. 

That  by  reason  and  virtue  of  all  of  said  facts  and  acts  of 
the  said  public  service  commission  of  the  state  of  Missouri 
and  the  penalty  statute  of  the  state  of  Missouri  provided  in 
connection  with  changes  and  charges  not  made  with  the  con- 
sent and  approval  of  said  public  service  commission  these 
plaintiffs  are  deprived  of  their  property  without  due  process 
of  law  and  are  compelled  to  transport  an-d  deliver  gas  to  con- 
sumers in  Missouri  for  less  than  the  actual  cost  of  said  serv- 
ice, and  therefore  at  an  actual  loss  for  each  and  every  cubic 
foot  of  gas  so  supplied  and  delivered. 

Plaintiffs  are  without  adequate  remedy  at  law  in  the  prenv 
ises  hereinbefore  set  forth  and  will  suffer  irreparable  injury 
unless  accorded  the  injunctive  relief  herein  prayed  for. 

Plaintiffs  respectfully  show  to  the  court  that -all  said  cir- 
cumstances above  enumerated  also  deprive  the  Kansas  Natu- 
ral Gas  Company  of  its  property  without  due  process  of  law, 
take  its  property  without  compensation  and  deny  to  it  equal 
protection  of  the  law,  and  apply  with  the  same  force  and 
effect  as  they  do  to  plaintiffs. 

Plaintiffs  respectfully  show  to  the  court  that  the  said  order 
of  the  public  utilities  commission  of  Kansas  of  December  10, 
1915,  is  void  for  the  following  reasons: 

(a)  Because  the  penalties  provided  for  the  infraction  there- 
of are  so  enormous  as  to  intimidate  these  plaintiffs  and  to 
force  an  abandonment  of  all  rights  to  act  independently  there- 
of, and  3aid  order  and  act  are  therefore  unconstitutional  as 
depriving  these  plaintiffs  of  property  without  due  process  of 
law  in  contravention  of  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States. 

(b)  Because  said  order  and  schedule  are  so  unreasonably 
low  as  to  be  non-compensatory,  unremunerative  and  confisca- 
tory, thereby  depriving  these  plaintiffs  of  property  without 
due  process  of  law  in  contravention  of  Section  1  of  the  four- 
teenth amendment  to  the  Constitution  of. the  United  States. 


FORMAL    PARTS    OF    A    BILL.  505 

(c)  Because  said  order  is  an  interference  with  the  trans- 
portation of  gas  in  interstate  commerce  from  the  state  of 
Oklahoma  to  consumers  in  Kansas,  in  contravention  of  Sec- 
tion 8  of  Article  1  of  the  Constitution  of  the  United  States. 

(d)  Because  the  schedule  of  rates  provided  and  required  by 
said  order  to  be  maintained  and  kept  in  force  is  so  unreason- 
ably low,  as  applied  to  gas  produced  and  sold  within  the  state 
of  Kansas  as  not  to  afford  sufficient  revenue  to  pay  a  fair 
return,  above  operative  expenses,  on  the  property  employed 
in  such  service  and  thereby  imposes  a  burden  on  the  inter- 
state commerce  conducted  by  plaintiff  receivers. 

(e)  Because  said  order  and  schedule  of  rates  prescribed 
therein  is  so  unreasonably  low  as  to  amount  to  the  taking  of 
and  an  interference  with  the  property  potentially  in  the  pos- 
session of  and  under  the  control  of  this  court. 

(/)  Because  any  rate  lower  than  thirty-seven  cents  per 
thousand  cubic  feet  in  Kansas,  north  of  Montgomery  county, 
is  so  unreasonably  low  as  to  amount  to  the  taking  of  property 
without  due  process  of  law  and  an  interference  with  property 
potentially  in  the  possession  and  control  of  this  court. 

Plaintiffs  respectfully  show  that  the  refusal  of  the  public 
utilities  commission  of  the  state  of  Kansas  to  permit  the 
plaintiff  receivers  to  put  into  force  and  effect  a  schedule  of 
reasonable  rates,  in  so  far  as  said  public  utilities  commission 
has  control  over  gas  delivered  to  consumers  in  the  state  of 
Kansas  by  these  plaintiff  receivers,  is  void  for  the  following 
reason : 

Because  said  refusal,  in  connection  with  the  penalties  pro- 
vided for  changing  the  rate  without  the  consent  of  said  com- 
mission compel  these  plaintiff  receivers  to  adhere  to  the 
schedule  of  rates  prescribed  by  said  commission,  which  are  so 
unreasonably  low  as  to  be  non-compensatory,  unremunerative 
and  confiscatory,  thereby  depriving  these  plaintiffs  of  their 
property  without  due  process  of  law  in  contravention  of  Sec- 
tion 1  of  the  fourteenth  amendment  to  the  Constitution  of 
the  United  States. 


506  SUITS    IN    EQUITY. 

No.  400. 

Prayer  for   Injunction   against   Infringement   of   Trade-mark 
and  Unfair  Competition. 

For  as  much  as  plaintiff  has  no  remedy  in  the  premises  by 
the  strict  rules  of  the  common  law  and  can  only  obtain  relief 
in  a  court  of  equity  where  matters  of  this  nature  are  properly 
cognizable  and  relievable,  plaintiff  therefore  prays : 

1.  That  an  injunction,  both  preliminary  and  perpetual,  may 
be  issued  by  this  honorable  court  to  the  said  defendant.  The 
A.  K.  Ackerman  Company,  enjoining  it,  its  attorneys,  serv- 
ants and  assigns, 

(a)  From  in  any  form  or  manner  whatsoever  making  use 
of  the  said  oval  trade-mark  appearing  in  certificate  No.  57,- 
567,  in  connection  with  sticky  flypaper  and  particularly  sticky 
flypaper  in  the  form  of  sheets,  and  from  using  the  same  on 
sheets  that  are  put  up  in  cartons  or  cases  in  simulation  of 
plaintiff's  cartons  and  cases; 

(b)  From  any  and  every  unlawful  and  untruthful  use  of 
said  registered  trade-mark;  and  that  the  packages,  wrappers 
and  receptacles  in  the  possession  of  the  defendant,  bearing 
the  trade-mark  of  the  complainant,  or  any  reproduction,  coun- 
terfeit, copy  or  colorable  imitation  thereof,  shall  be  delivered 
up  and  destroyed,  in  accordance  with  Section  20  of  the  trade- 
mark act; 

(c)  From  introducing  upon  the  market  or  offering  for 
sale  sticky  flypaper  in  imitation  of  plaintiff's  sticky  flypaper, 
with  marks  thereon  in  imitation  of  plaintiff's  trade-marks; 

(d)  From  introducing  upon  the  market  or  offering  for 
sale  sticky  flypaper  in  cartons  in  imitation  of  plaintiff's  car- 
tons, with  marks  thereon  in  imitation  of  plaintiff's  marks ; 

(c)  From  introducing  upon  the  market  or  offering  for 
sale  sticky  flypaper  in  cases  in  imitation  of  plaintiff's  cases, 
with  marks  thereon  in  imitation  of  plaintiff's  marks; 

(/)  From  introducing  upon  the  market  or  distributing  ad- 
vertising matter  advertising  flypaper  in  imitation  of  plaintiff's 


FORMAL    PARTS    OF    A    BILL.  507 

advertising  to  mislead  the  trade  and  consumer  when  buying- 
defendant's  goods  into  believing  that  they  are  buying  the 
goods  of  plaintiff; 

(g)  From  continuing  the  use  of  the  name  Grand  Rapids 
Sticky  Fly  Paper  Company  on  the  cases,  cartons  and  sheets 
of  sticky  flypaper,  because  this  term  is  only  a  fictitious  name, 
adopted  by  said  Albert  G.  Dickinson,  there  being  no  such 
company  in  existence ; 

(li)  From  marketing  and  selling  sealed  sticky  flypaper  in 
accordance  with  the  expired  patent  No.  278.294  referred  to 
herein,  without  distinctly  marking  thereon  in  some  appro- 
priate manner  that  it  is  not  the  product  of  the  original  manu- 
facturer of  sticky  flypaper,  The  O.  &  W.  Thum  Company,  or 
otherwise  definitely  showing  that  the  same  is  not  the  product 
of  such  original  manufacturer ;  and 

(/)  From  doing  any  acts  or  things  that  would  enable  de- 
fendant to  fraudulently  substitute  its  product  for  the  product 
of  plaintiff. 

2.  That  the  defendant  may  come  to  a  full  and  fair  account 
of  all  profits  it  has  received  because  of  the  sale  of  sticky  fly- 
paper in  violation  of  plaintifif's  rights  herein. 

3.  That  the  defendant  shall  further  account  to  plaintiff  and 
pay  to  plaintiff  all  damages  that  it  has  inflicted  upon  plaintiff 
by  its  wrongful  acts. 

4.  That  plaintiff  may  have  such  further  relief  or  such 
other  relief  as  may  be  agreeable  to  equity. 

5.  That  a  subpoena  may  be  issued  out  of  arid  under  the 
seal  of  this  honorable  court,  directed  to  the  said  The  A.  K. 
Ackerman  Company,  commanding  it  to  appear  before  this 
honorable  court  on  a  certain  day  and  undef  a  certain  penalty 
to  be  herein  inserted,  to  answer  this  bill  of  complaint,  sen- 
tence by  sentence  and  paragraph  by  paragraph,  the  same  as 
if  the  same  were  here  again  repeated  and  it  thereunto  par- 
ticularly  interrogated. 


508  SUITS    IN    EQUITY. 

And  plaintiff  will  ever  pray. 

The  O.  &  W.  Thum  Company, 
By  X.  Y., 
President  and  General  Manager. 
A.  B.  and  C.  D., 

Solicitors  for  Complainant. 

[Verification.] 


No.  401. 

Prayer  for  an  Injunction  to  Restrain  Certifying  Assessment 

for  Taxation. 

Your  plaintiff  prays  that  an  injunction  pendente  lite  be 
granted  commanding  said  S.  X.,  G.  Y.  and  R.  T.  to  refrain 
from  assessing  or  attempting  to  assess  the  franchise  of  plain- 
tiff, or  any  of  plaintiff's  property,  except  to  the  extent  above 
indicated,  and  that  the  said  S.  X.  be  restrained  from  certify- 
ing any  assessment  which  has  been  or  may  be  made  of  the 

franchise  or  property  of  plaintiff  to  the  county  clerk  of 

county,  or  any  other  officer,  except  upon  an  assessment  based 
upon  the  principles  above  stated,  and  upon  such  final  hearing 
a  decree  be  made  establishing  the  right  of  plaintiff  to  be 
taxed  in  the  method  allowed  to  the  individual  citizens  of  the 
state  and  in  a  manner  which  will  not  result  in  compelling  him 
to  bear  an  -improper  proportion  of  the  burdens  of  govern- 
ment, and  that  said  defendants  be  perpetually  enjoined  from 
assessing  or  certifying  any  assessment  made  of  plaintiff's 
franchise  or  properties  except  upon  the  basis  aforestated,  and 
from  collecting  any  taxes  or  penalties  because  of  any  alleged 
delinquency  of  plaintiff  in  failing  to  pay  taxes  based  upon 
any  highej  or  different  assessment, 


FORMAL    PARTS    OF    A   BILL.  509 

No.  402. 

Prayer  for  Injunction  to  Enjoin  Infringement  of  Patent  for 

Invention. 

Plaintiff  prays  that  the  said  defendants,  their  agents,  serv- 
ants, attorneys,  workmen,  employes  and  representatives,  and 
each  and  every  of  them,  may  be  restrained  and  enjoined,  pro- 
visionally and  preliminarily,  as  well  as  perpetually,  by  the 
order  and  injunction  of  this  honorable  court,  from  directly  or 
indirectly  making,  using,  vending  or  putting  into  practice, 
operation  or  use.  or  in  any  way  practicing  or  imitating  the 
said  patented  invention,  or  any  material  or  substantial  parts 
thereof;  or  from  inviting  or  encouraging  or  enabling  others 
so  to  do ;  and  that  the  defendant  may  be  decreed  to  pay  the 
costs  of  this  suit ;  and  that  plaintiff  may  have  such  other  and 
further  relief  as  to  this  honorable  court  shall  seem  meet  and 
agreeable  to  equity. 


No.  403. 

Prayer  for  Specific  Performance  of  Contract  to  Make  a  Policy 
of  Insurance.  (1) 

Plaintiffs  pray  that  the  said  agreement  of  the  defendants 
to  execute  and  deliver  to  them  a  policy  of  insurance  accord- 
ing to  the  terms  of  the  aforesaid  paper,  and  in  accordance 
with  the  defendant's  contract  of  insurance,  as  aforesaid,  may 
be  specifically  performed,  plaintiffs  hereby  undertaking  to 
perform  their  undertakings  in  the  premises. 

(1)  As  to  jurisdiction  of  equity  to  grant  this  relief  and  also  decree 
payment  of  policy,  see  Herbert  v.  Mut.  Life  Ins.  Co.,  12  Fed.  8(W";  Tayloe 
V.  Merchants'  Fire  Ins.  Co..  9  How.  390,  13  L.  Ed.  187. 


No.  404. 

Prayer  for  Specific   Performance   of  Agreement  to   Execute 
Mortgage  of  Indemnity.(l) 

Plaintiff  prays  that  the  defendant  may  be  decreed  specific- 
ally to  perform  the  said  agreement  and  to  make  a  mortgage 


510  SUITS    IN    EQUITY. 

to  the  plaintiff  of  the  said  real  estate  and  premises  to  indem- 
nify him  against  the  obligation  he  has  entered  into  with  E.  F. 
and  G.  H.,  as  hereinbefore  described,  and  that  it  may  be  re- 
ferred to  a  master  to  settle  such  mortgage  if  the  parties 
should  differ  about  the  same. 
(1)  Horton  v.  McKee,  68  Fed.  404. 


No.  405. 

Prayer   for   Specific   Performance   of    Contract   for   Sale   and 
Purchase  of  Real  Estate,  (1) 

Plaintiff  prays  that  the  said  A.  B.  be  compelled  by  the  de- 
cree and  order  of  the  court  to  accept  the  said  sum  of  money 
above  named  as  part  of  the  purchase  price  of  the  said  above 
described  property,  and  to  convey,  make  and  execute  to  plain- 
tiff a  good  and  sufficient  deed  to  said  property,  to-wit :  [De- 
scribe the  property.] 

(1)  Hunt  V.  Rousmaniere's  Admrs.,  1  Pet.  1;  Willard  v.  Taylor,  8 
Wall.  557;  Farrington  v.  Tourtelott,  39  Fed.  738;  Foster's  Fed.  Prac. 
5th  ed.,  Sec.  265. 


No.  406. 

Prayer  for  Specific  Performance  of  Contract  by  Vendee  to 
Buy  Real  Estate.  (1) 

Plaintiff  prays  that  the  said  E.  F.  may  be  compelled  by  the 
decree  of  this  honorable  court  specifically  to  perform  the  said 
agreement  with  the  plaintiff,  and  to  pay  to  him  the  remainder 
of  the  said  purchase  money,  with  interest  for  the  same  from 
the  time  said  purchase  money  ought  to  have  been  paid,  the 
plaintiff  being  willing  and  hereby  offering  specifically  to  per- 
form the  said  agreement  on  his  part,  and,  on  being  paid,  the 
said  remaining  purchase  money  and  interest,  to  execute  a 
proper  conveyance  of  the  said  premises  to  the  said  E.  F.,  and 
to  let  him  into  possession  of  the  rents  and  profits  thereof 
from  the  .said day  of ,  19 — . 

(1)  See  Zeringue  v.  Texas  &  P.  R.  Co,  34  Fed.  239;  Foster's  Fed. 
Prac,  5th  ed.,  Sec.  265. 


FORMAL    PARTS    OF    A    BILL.  511 

No.  407. 

Prayer  for  Payment  of  Legacies  and  to  Carry  the  Trusts  of 
a  Will  into  Execution. 

Plaintiff  prays  that  an  account  may  be  taken  of  what  is 
clue  and  owing-  to  him  for  the  principal  and  interest  of  the 
said  legacy,  and  that  the  said  defendant  may  be  decreed  to 
pay  the  same  to  plaintiff;  and  if  the  said  defendant  shall  not 
admit  assets  of  the  said  testator  sufficient  to  answer  the  same, 
then  that  an  account  may  be  taken  of  the  estate  and  effects 
of  the  said  testator  which  have  been  possessed  or  received  by 
the  said  defendant,  or  by  any  other  person  by  his  order,  or 
to  his  use,  and  that  the  same  may  be  applied  in  due  course 
of  administration. 


No.  408. 

Prayer  for  Reformation  of  Deed  on  the  Ground  of  Mistake, 

Plaintiff  prays  that  the  deed  of  conveyance  from  X.  Y.  to 
G.  H.,  dated  ,  19 — ,  of  the  property  hereinbefore  de- 
scribed, may  be  reformed  and  made  to  conform  to  the  true 
intent  and  purpose  for  which  the  property  was  purchased, 
and  to  that  end  it  may  be  made  to  include  the  same  uses  and 
trusts  raised,  created  and  declared  in  the  prior  deed  from 
R.  S.  to  X.  Y.,  according  to  the  understanding  and  agree- 
ment of  the  parties. 


No.  409. 

Prayer  for  Cancellation  of  Deed. 

Plaintiff  prays   that   the   said   deed   to   said   lots    [describe 

them],  dated ,  19 — ,  be  set  aside,  annulled  and  held  for 

naught,  and  that  the  defendants  be  required  to  surrender  up 
the  same  to  be  cancelled ;  and  that  they,  and  each  of  them,  be 
forever  restrained  and  enjoined  from  setting  up  or  claiming 
any  estate,  right,  title  or  interest  in  or  to  the  premises  de- 
scribed in  said  deed,  and  that  complainants  be  decreed  to  be 
the  owners  thereof  and  entitled  to  the  possession  of  the  same. 


512  .         SUITS    IN    EQUITY. 

No.  410. 

Prayer  by  Next  of  Kin  for  Account  and  Distribution  and  to 

Restrain  Sale. 

Plaintiffs  pray  that  an  account  may  be  taken,  under  and 
by  the  direction  of  this  honorable  court,  of  the  personal  estate 

and  effects  of  the  said  C.  D.,  intestate,  possessed  by  or 

come  into  the  hands  of  the  said  defendant,  E.  F.,  his  adminis- 
trator, or  to  the  hands  of  any  other  person  or  persons  by  his 
order  or  for  his  use;  and  also  an  account  of  said  intestate's 
debts  and  funeral  expenses,  and  that  the  said  intestate's  per- 
sonal estate  may  be  applied  in  due  course  of  administration; 
and  that  the  clear  residue  thereof  may  be  ascertained,  and 
that  plaintiffs,  respectively,  may  be  paid  one  part  each  of  such 
clear  residue;  and  that  in  the  meantime  the  said  defendant, 
E.  F.,  may  be  restrained  by  the  injunction  of  this  honorable 
court  from  selling  or  disposing  of  [state  property  about  to 
be  sold]. 


No.  411. 

Prayer  for  Cancellation  of  Land  Patent  and  Deeds. 

Plaintiff  prays  that  the  patent  purporting  to  convey  title  to 
said  above  described  lands  may  be  set  aside  and  cancelled  and 
declared  null  and  void,  and  that  the  several  mesne  convey- 
ances from  the  said  patentee,  R.  S.,  to  said  defendants  herein 
may  be  set  aside,  cancelled  and  declared  null  and  void. 


No.  412. 

Prayer  to  Have  Trust  Declared  as  to  Personalty. 

Plaintiff  prays  that  the  defendant,  the  A.  B.  Bank,  may  be 
by  this  honorable  court  declared  to  have  received  and  held 
the  moneys   of   plaintiff   as   above    alleged,    amounting   to   a 

balance  of  $ ,  on  the day  of ,  as  deposited  with 

said  defendant  by  the  said  C.   D.   as  treasurer  and  tax  col- 
lector of  said  county,  to  be  the  money  and  property  of 


FORMAL    PARTS    OF    A    BILL.  513 

plaintiff,  and  that  the  defendant,  the  A.  B,  Bank,  and  the 
said  E.  F.,  as  receiver  thereof,  be  decreed  to  'be  trustee  there- 
of, for  the  use  and  benefit  of  plaintiff;  that  plaintiff  may  have 
a  lien  upon  all  the  moneys,  choses  in  action,  and  other  prop- 
erty in  said  A.  B.  Bank  to  the  amount  of  the  balance  of  the 
funds  of  plaintiff  so  deposited  as  aforesaid,  and  that  the  said 

balance   of  $ ,    together  with   interest   thereon    from   the 

day  of  at  the  rate  of  per  cent,  per  annum, 

be  returned  to  plaintiff. 


No.  413. 

Prayer  to  Have  Trust  Declared  as  to  Real  Estate. 

Plaintiffs  pray  that  the  defendants,  and  each  and  every  of 
them,  may  be  adjudged  and  decreed  to  hold  such  portion  of 
the  said  lands  as  are  now  in  their  possession  in  trust  for 
plaintiffs  and  to  convey  the  same  to  plaintiffs ;  and  deliver  to 
them  any  patents  or  other  deeds  of  the  same  in  their  posses- 
sion, and  be  restrained  and  enjoined  from  hereafter  setting 
up  any  claim  or  title  to  said  lands  or  any  part  thereof,  or  in 
any  manner  intermeddling  therewith  or  removing  any  timber 
or  other  product  therefrom. 

And  that  the  defendants,  and  each  and  every  of  them,  may 
be  adjudged  and  decreed  to  hold  any  timber  or  other  product 
by  them,  their  servants  or  agents,  removed  from  said  land, 
or  the  proceeds  or  manufactured  product  of  the  same,  in  trust 
for  plaintiffs,  and  may  be  decreed  to  account  to  plaintiffs  for 
the  same  or  the  value  thereof,  and  to  pay  to  plaintiffs  said 
value,  with  interest  from  the  date  of  sale  if  the  same  has  been 
sold  by  the  said  defendants. 


No.  414. 

.    Prayer  to  Have  Trust  Declared  as  to  Real  Estate. 
(Another  Form.) 

Plaintiff  prays  that  the  said  A,  B.  Company  be  decreed  to 
have  furnished  the  money  to  said  C.   D.,   which  he  paid  to 


514  SUITS    IN    EQUITY. 

said  E.  F.  for  said  contract  and  land ;  that  the  said  C.  D.  in 
procuring  said  contract  and  land  acted  as  the  agent  and  trus- 
tee of  the  said  company ;  that  the  said  trust  be  declared ;  that 
the  said  company  be  decreed  to  be  the  beneficial  party  in  in- 
terest in  said  contract,  and  that  under  and  by  virtue  of  said 
contract  it  acquired  an  equitable  interest  in  said  land,  and 
that  plaintiff  is  now  the  owner  and  holder  of  the  equitable 
right,  title  and  interest  in  said  contract  and  land  so  acquired 
by  said  A.  B,  Company. 


No.  415. 

Prayer  for  Injunction  Against  Proceeding  at  Law  —  Declara- 
tion of  Trust  —  Conveyance.  (1) 

To  the  end,  therefore,  that  the  plaintiffs  may  have  that 
relief  which  they  can  only  obtain  in  a  court  of  equity,  and 
that  the  said  defendants,  who  are  plaintiffs  as  aforesaid  in 
the  said  action  at  law,  may  be  perpetually  enjoined  from  fur- 
ther prosecuting  the  same,  and  that  it  may  be  declared  that 
the  said  lands  are  charged  with  a  trust  in  favor  of,  and  ought 
to  be  held  for,  the  use  and  benefit  of.  etc.,  and  that  the  said 
defendants,  or  so  many  and  such  of  them  as  shall  appear  to 
have  the  legal  title  to  said  lands,  may  be  decreed  to  convey 
such  legal  title,  free  of  all  encumbrances  done  or  suffered  by 
them,  or  any  or  either  of  them  unto  the  plaintiffs,  in  their 
said  capacity,  to  hold  to  them  and  their,  etc.,  upon  the  trusts 
aforesaid,  and  for  such  further  or  other  relief  as  the  nature 
;Of  this  case  may  require,  and  to  your  honors  shall  seem  meet. 
I      (1)  Earl  V.  Wood,  8  Cush.  430. 


No  4ie. 

Prayer  for  Attorney's  Fees. 

Plaintiff  prays  that  the  amounts  due  and  owing  and  unpaid 
for  the  compensation,  expenses  and  counsel  fees  may  be 
(Charged  and: determined,  and  that  payment  of  so  much  there- 


FORMAL    PARTS    OF    A   BILL.  515 

of  as  shall  be  due  from  and  by  the  said  defendants,  or  any  of 
them,  may  be  decreed  by  this  court;  that  plaintiff  may  be 
indemnified  and  saved  harmless  from  all  loss,  expenses  and 
counsel  fees  aforesaid;  that  the  signers  of  the  agreement 
aforesaid  may  be  compelled  to  pay  off  and  discharge  the  ex- 
penses, compensation  and  counsel  fees  aforesaid  so  that  plain- 
tiff may  be  relieved  from  any  obligation  thereon  or  liability 
therefor. 


No.  417. 

Prayer  in  Bill  of  Interpleader.  (1) 

Plaintiff  prays  that  the  said  defendants  may  be  decreed  to 
interplead  together,  and  that  it  may  be  ascertained  in  such 
manner  as  this  honorable  court  shall  direct  to  which  of  them 
the  said  sum  of  money  ought  to  be  paid;  and  that  plaintiff 
may  have  leave  to  pay  the  same  into  court,  which  he  offers 
to  do,  for  the  benefit  of  such  of  the  parties  as  shall  be  found 
or  decreed  to  be  entitled  thereto ;  and  that  the  said  persons  be 
in  the  meantime  restrained  from  commencing  or  prosecuting 
any  suit  at  law  against  plaintiff  in  his  said  capacity  touching 
the  said  sum  of  money. 

(1)  As  to  interpleader,  see  Foster's  Fed.  Prac,  5th  ed..  Sees.  157  and 
158;  Daniell's  Ch.  Pr.,  5  Am.  Ed.,  p.  1560;  Killian  v.  Ebbinghaus,  110  U.  S. 
568,  28  L.  Ed.  246;  Wells,  Fargo  &  Co.  v.  Miner,  25  Fed.  533;  Mc- 
Whirter  v.  Halsted,  24  Fed.  828;  Aetna  Nat.  Bank  v.  U.  S.  Life  Ins. 
Co..  25  Fed.  531 ;  Penn.  Mutual  Life  Ins.  Co.  v.  Union  Trust  Co.,  83  Fed. 
891. 


No.  418. 

Prayer  in  Bill  of  Interpleader  by  an  Executor. 

Wherefore  plaintiff  prays  that  the  said  several  defendants 
may  be  decreed  to  interplead  and  state  their  several  claims 
upon  plaintiff  in  the  execution  of  his  said  trust  as  executor, 
so  that  the  court  may  adjudge  whether  a  sufficient  sum  shall 
be  taken  from  the  assets  of  the  estate  in  the  hands  of  plain- 


516  SUITS    IN    EQUITY. 

tiff  to  pay  said  mortgage  debt  and  the  interest  thereon,  or 
whether  the  same  shall  be  paid  to  the  defendants  claiming 
under  the  residuary  clause  of  said  will. 


No.  419. 

Prayer  for  a  Guardian  ad  litem. 

Plaintiff  prays  that  a  guardian  ad  litem  be  appointed  for 
E.  S.,  the  infant  defendant  named  above. 


No.  420. 

Prayer  for  a  Conveyance  and  Deed  by  Special  Master. 

.  Plaintiff  prays  that  a  good  and  perfect  deed  of  conveyance 
may  be  made  to  him  for  the  premises  aforesaid ;  and  that  a 
commissioner  may  be  appointed  by  the  court  to  make  and 
execute  such  deed,  or  that  the  master  in  chancery  of  this 
court  be  directed  to  execute  the  same. 


No.  421. 

Prayer  for  Writ  of  Ne  Exeat.  (1) 

Wherefore  plaintiff  prays  the  court  to  grant  him  a  writ  of 
ne  exeat  repuhlica,  restraining  and  forbidding  the  said  C.  D., 
defendant  hereinbefore  named,  from  departing  beyond  the 
limits  of  the  United  States  without  leave  of  this  court  first 
had. 

(1)   See  Judicial  Code,  Sec.  261;  Desty's  Fed.  Proc,  Sec.  237,  and  cases 
there  cited;   Foster's  Fed.   Prac,  Sth  ed.,   Sees.  326-328. 


No.  422. 

Prayer  for  Writ  of  Certiorari.  (1) 

May  it  please  your  honors,  therefore,  to  grant  unto  plain- 
tiff a  writ  of  certiorari,  to  be  directed  to  the  judges  of  the 
said court  of ,  thereby  commanding  them  upon  the 


FORMAL    PARTS    OF    A    BILL.  517 

receipt  of  the  said  writ  to  certify  and  remove  the  said  bill 
and  all  proceedings  thereon  into  this  honorable  court;  and  to 
stand  to  and  abide  such  order  and  direction  as  to  your  honors 
shall  seem  meet,  and  the  circumstances  of  the  case  require. 
(1)  Foster's  Fed.  Prac,  5th  ed.,  Sec.  360. 


No.  423. 

Prayer  for  Subpoena. 

May  it  please  your  honors  to  grant  unto  the  plaintiff  a 
writ  of  subpoena,  to  be  directed  to  the  said  C,  D, (1),  etc., 
thereby  commanding  them,  and  each  of  them,  at  a  certain 
time,  and  under  a  certain  penalty  therein  to  be  limited,  per- 
sonally to  appear  before  this  honorable  court  [or,  your  honors 
in  this  honorable  court],  and  then  and  there  full,  true,  direct, 
and  perfect  answer  make  to  all  and  singular  the  premises, 
and  further  to  stand  to,  perform  and  abide  such  further  or- 
der, direction  and  decree  therein  as  to  this  honorable  court 
[or,  to  your  honors]  shall  seem  meet  [or,  as  shall  seem  agree- 
able to  equity  and  good  conscience]. (2) 

(1)  The  prayer  for  subpoena  must  contain  the  names  of  all  the  de- 
fendants. See  Equity  Rule,  12;  Beach's  Modern  Eq.  Prac,  Sec.  94 
and  notes ;  Foster's  Fed.  Prac,  5th  ed.,  Sees.  160-167. 

(2)  The  words  in  italics  must  be  omitted  in  bills  merely  for  discovery, 
or,  to  perpetuate  the  testimony  of  witnesses.  Story  Eq.  PL,  Sec.  44, 
note ;  Barton's  Suit  in  Eq.  43,  note  1 ;  Equity  Drafts,  6. 


No.  424. 

Prayer  for  Process  Where  the  Government  is  a  Defendant. 

And  may  it  please  your  honors  that  the  district  attorney 
of  the  United  States  for  the  district  of  ,  on  being  at- 
tended with  a  copy  of  this  bill,  may  appear  and  put  in  his 
answer  thereto,  and  may  stand  to  and  abide  such  order,'  direc- 
tion and  decree  in  the  premises  as  to  your  honors  shall  seem 
meet. 


518  SUITS    IN    EQUITY. 

No,  425. 

Signature  of  Bills. 

All  bill?  must  be  signed  by  counsel.  See  24th  Rule  in 
Equity;  Beach's  Modern  Eq.  Prac,  Sec.  84,  and  cases  cited; 
Foster's  Fed.  Prac,  5  ed..  Sec.  155,  and  cases  cited.  Signa- 
ture on  the  back  of  the  bill  has  been  held  sufficient.  Dwight 
V.  Humphreys,  3  McLean,  104. 


No.  426. 

Verification  (1)  by  Officer  of  Corporation  Plaintiff. 

State  of  Delaware, 

County  of  Newcastle : 

Alexis  T.  Du  Pont,  being  duly  sworn,  deposes  and  says  that 
he  is  secretary  of  the  E.  I.  du  Pont  de  Nemours  Powder 
Company,  one  of  the  above-named  plaintiffs;  that  he  has  read 
the  foregoing  bill  of  complaint  and  knows  the  contents  there- 
of; that  the  same  is  true  of  his  own  knowledge  except  as  to 
matters  therein  stated  on  information  and  belief,  and  as  to 
those  matters  he  believes  it  to  be  true. 

Alexis  I.  Du  Pont. 

Sworn  to  before  me  this  3rd  day  of  July,  1914. 

[Seal.]  P.  E.  Strickland, 

Notary  Public. 
My  commission  expires  May  24,  1918. 

State  of  Delaware, 

County  of  Newcastle : 

R.  R.  M.  Carpenter,  being  duly  sworn,  deposes  and  says 
that  he  is  president  of  the  Du  Pont  Fabrikoid  Company,  one 
of  the  above-named  plaintiffs;  that  he  has  read  the  foregoing 
bill  of  complaint  and  knows  the  contents  thereof;   that  the 


FORMAL    PARTS    OF    A    BILL.  519 

same  is  true  of  his  own  knowledge  except  as  to  matters  there- 
in stated  on  information  and  belief,  and  as  to  those  matters 
he  believes  it  to  be  true.  R.  R.  M.  Carpenter. 

Sworn  to  before  me  this  3rd  day  of  July,  1914. 

[Seal.]  P.  E.  Strickland, 

Notary  Public. 
My  commission  expires  May  24,  1918. 

(1)  Eq.  R.  25,  paragraph  fifth,  requires  verification  by  the  oath  of  the 
plaintiff  or  some  one  else  having  knowledge  of  the  facts,  if  special  relief 
is  desired  pending  the  suit. 

Here  an  officer  of  the  corporation  plaintiff  verifies. 

"The  fact  that  special  relief  is  prayed  puts  the  bill  in  the  category  of 
those  which  must  be  verified  in  accordance  with  Rule  25"  and  a  verifica- 
tion by  the  attorney  in  fact  for  the  plaintiff  is  insufficient  where  he 
swears  that  "so  far  as  the  statements  in  said  bill  are  within  his  own 
knowledge,  they  are  true,  and  so  far  as  they  are  predicated  upon  informa- 
tion from  others  he  believes  them  to  be  true,"  for  the  statement  is  so 
indefinite  as  to  be  valueless. 

Here  preliminary  injunction  was  asked,  which  was  not  subsequently 
insisted  on,  yet  the  rule  relating  to  prayer  for  special  relief  applied. 
Scheuerle  v.  Onepiece  Bifocal  Lens  Co.,  241  Fed.  270,  273. 

Equity  Rule  36  provides  for  verification  of  bill  or  other  pleading 
before  certain  named  officers ;  and  Rule  69  provides  for  verification  of 
petition  for  rehearing. 


No.  427. 

Verification  by  Copartnership. 

State  of  New  York. 


,  ss. 
County  of  New  \ork, 

Arend  H.  Weingardt,  being  duly  sworn,  says  that  he  is  a 
member  of  the  firm  of  Knauth,  Nachod  &  Kuhne,  the  com- 
plainants in  the  foregoing  bill ;  that  the  complainants  are  co- 
partners pleading  together  and  that  he  is  authorized  to  make 
verification  on  behalf  of  his  co-partners  as  well  as  on  behalf 
of  himself.  That  he  has  heard  read  the  foregoing  bill  and 
knows  the  contents  thereof,  and  that  the  same  is  true  to  his 
own  knowledge  except  as  to  matters  therein  stated  to  be 
alleged  on  information  and  belief  and  that  as  to  those  matters 


520  SUITS   IN   EQUITY. 

he  believes  it  to  be  true,  except  that  the  membership  of  said 
firm  and  their  citizenship  is  set  forth  as  of  the  time  when  the 
suit  was  instituted.  Arend  H.  Weingardt. 

Sworn  to  before  me  this  19th  day  of  December,   1914. 

[L.  S.]  Frank  F.  Kirkpatrick, 

Notary  Public,  N.  Y.  Co. 


No.  428. 

Verification  of  Amended  Intervening  Petition  and  Cross- 
Petition. 

Charles  F.  Bisett,  being-  duly  sworn,  states  on  oath  that  he 
is  one  of  the  interveners  and  cross-petitioners  in  the  fore- 
going cause;  that  he  has  read  the  above  and  foregoing 
amended  intervening  petition  and  cross-petition,  and  knows 
the  contents  thereof,  and  that  the  matters  and  things  therein 
set  forth  are  true  as  he  is  informed  and  verily  believes. 

Chas.  F.  Bisett. 

Subscribed  and  sworn  to  before  me  this  31st  day  of  Oc- 
tober, 1914.  Ethel  K.  Childers, 
[Seal.]  Notary  Public. 


No.  429. 

Verification  of  a  Member  of  a  Partnership. 

State  of  Missouri,  County  of  Jackson,  ss: 

A.  Danciger,  being  first  duly  sworn,  upon  his  oath  states: 
that  he  is  one  of  the  plaintiffs  in  the  above  entitled  cause 
and  a  member  of  the  co-partnership  composed  of  Dan  Dan- 
ciger, A.  Danciger,  Jack  Danciger,  Joseph  Danciger  and  M. 
O.  Danciger,  doing  business  as  Danciger  Bros.,  Harvest  King 
Distilling  Company  and  Schiller  Bros.  Distilling  Company, 
the  plaintiffs  in  this  action,  and  that  he  is  authorized  to  and 
makes  this  affidavit  in  behalf  of  said  plaintiffs;  that  he  has 
read  the  foregoing  bill;  that  he  is  familiar  with  the  matters, 


FORMAL    PARTS    OF    A    BILL.  521 

allegations  and  facts  set  out  therein,  and  that  the  same  are 
true  to  his  certain  knowledge.  A.  Danciger. 

Subscribed  and  sworn  to  before  me  this  15th  day  of  June, 
1914.  Mary  A.  Collier, 

[Seal.]  Notary  Public. 

My  commission  expires  Feb.  19,  1917. 


No.  430. 

Verification  by  a  Solicitor. 

[Venue.] 

E,  C.  Day,  being  first  duly  sworn,  on  oath  deposes  and 
says  that  he  is  one  of  the  solicitors  for  the  plaintiffs  above 
named;  that  each  of  said  plaintiffs  is  a  foreign  corporation 
and  has  no  officer  or  agent  within  the  state  of  Montana, 
wherefore  he  makes  this  verification  for  and  on  behalf  of  said 
plaintiffs  and  as  their  said  solicitor;  that  he  has  read  the  fore- 
going bill  of  complaint  and  knows  the  contents  thereof,  and 
that  the  matters  therein  stated  are  true  to  the  best  of  his 
knowledge,  information  and  belief.  E.  C.  Day. 

Subscribed  and  sworn  to  before  me  this  14th  day  of  July, 
1916.  T.  A.  M., 

[Seal  1  Notary  Public,  &c. 


522  SUITS    IN    EQUITY, 


BILLS  IN  SPECIA.L  CASES. 


No.  431. 

Bill  to  Restrain  Disclosures  and  Use  of  Trade   Secrets.(l) 

[Caption.] 

1.  E.  I.  du  Pont  de  Nemours  Powder  Company,  a  cor- 
poration of  the  state  of  New  Jersey,  and  a  citizen  of  said 
state,  and  having  its  principal  office  at  51  Newark  street,  in 
the  city  of  Hoboken,  county  of  Hudson,  and  state  of  New 
Jersey,  and  an  office  and  place  of  business  in  the  city  of  Wil- 
mington, county  of  Newcastle,  and  state  of  Delaware;  and 
Dupont  Fabrikoid  Company,  a  corporation  of  the  state  of 
Delaware,  and  a  citizen  of  said  state,  and  having  its  principal 
office  in  the  city  of  Wilmington,  county  of  Newcastle,  and 
state  of  Delaware :  bring  this  their  bill  of  complaint  against 
Walter  E.  Masland,  Charles  H.  Masland,  Maurice  H.  Mas- 
land,  Charles  W.  Masland,  Frank  E.  Masland  and  J.  Wesley 
Masland,  all  citizens  of  the  state  of  Pennsylvania,  and  resid- 
ing in  the  city  and  county  of  Philadelphia,  in  the  state  of 
Pennsylvania,  within  the  eastern  district  of  Pennsylvania. 

2.  This  is  a  suit  in  equity  between  citizens  of  different 
states  to  restrain  the  disclosure  and  use  of  trade  secrets,  the 
value  of  which  exceeds,  exclusive  of  interest  and  costs,  the 
sum  of  three  thousand  dollars  ($3,000),  and  is  brought  in 
the  district  and  state  of  which  all  the  defendants  are  residents 
and  inhabitants. 

3.  E.  I.  du  Pont  de  Nemours  Powder  Company,  one  of  the 
above-named  plaintiffs,  has  been  engaged  since  1907  in  the 
manufacture  of  explosives,  and  in  the  manufacture  of  articles 
utilizing  products  and  by-products  therefrom.  It  maintains 
and  has  maintained  experimental  stations  employing  technical 


BILLS   IN    SPECIAL    CASES.  523 

and  other  men  to  invent  and  discover  new  and  useful  pro- 
cesses, apparatuses,  articles  of  manufacture,  and  compositions 
of  matter,  and  new  and  useful  improvements  thereof,  in  con- 
nection with  its  said  manufactures,  some  of  which  it  protects 
by  letters  patent  and  others  of  which  it  maintains  as  trade 
secrets.  Among  its  technical  employes  was  Walter  E.  Mas- 
land,  one  of  the  above-named  defendants,  who  entered  its 
employ  in  1905,  soon  after  his  graduation  from  the  Univer- 
sity of  Pennsylvania,  and  who  ceased  to  be  so  employed  on 
or  about  the  13th  day  of  June,  1914.  All  its  employes  at  its 
experimental  stations,  including  said  Walter  E.  Masland, 
were  employed  with  the  understanding  that  all  inventions  and 
discoveries  used  or  devised  for  or  in  connection  with  the 
business  or  discovered  by  its  employes  were  its  exclusive 
property  and  were  not  to  be  disclosed  to  others  or  utilized  in 
any  manner  by  said  employes.  These  secrets  were  guarded 
with  the  utmost  care  and  every  precaution  taken  to  prevent 
their  becoming  known.  Said  Walter  E.  Masland  executed  on 
or  about  the  first  day  of  August,  1905,  a  contract  relating  to 
his  employment  with  E.  I.  du  Pont  Company,  a  corporation 
of  the  state  of  Delaware,  the  predecessor  of  said  plaintiff, 
E.  I.  du  Pont  de  Nemours  Powder  Company,  and  from 
whom  said  plaintiff  purchased  its  present  business  together 
with  all  rights  appertaining  thereto. 

On  or  about  the  first  day  of  August,  1910,  said  plaintiff, 
E.  I.  du  Pont  de  Nemours  Powder  Company,  purchased  the 
business  of  a  concern  manufacturing  artificial  leather,  and  on 
or  about  the  first  day  of  August,  1913,  sold  all  the  assets  and 
property  relating  thereto  to  the  other  of  said  plaintiffs,  du 
Pont  Fabrikoid  Company.  In  the  early  part  of  1912  said 
Walter  E.  Masland  was  placed  in  charge  of  experimental 
work  in  inventing  and  discovering  new  and  useful  processes, 
apparatuses,  articles  of  manufacture,  and  compositions  of 
matter,  and  new  and  useful  improvements  thereof,  in  connec- 
tion with  said  manufacture  of  artificial  leather,  and  at  that 


524  SUITS    IN    EQUITY. 

time  and  at  all  times  subsequent  thereto,  has  had  full  access 
by  reason  of  his  said  connection  with  said  experimental  work, 
to  valuable  discoveries,  inventions  and  trade  secrets,  devel- 
oped at  the  manufacturing  plant  of  said  plaintiff,  the  du  Pont 
Fabrikoid  Company,  and  to  a  limited  extent  to  other  labora- 
tories and  plants  of  said  plaintiff,  E.  I.  du  Pont  de  Nemours 
Powder  Company.  Said  Walter  E,  Masland  and  his  assist- 
ants, together  with  other  employes  of  both  said  plaintiffs, 
have  brought  said  experimental  work  to  such  a  stage  that 
steps  are  being  taken  by  plaintiffs  for  the  construction  of  a 
commercial  sized  manufacturing  unit  for  utilizing  the  same. 
On  or  about  the  first  day  of  June,  1914,  said  Walter  E.  Mas- 
land  notified  plaintiff,  E.  I.  du  Pont  de  Nemours  Powder 
Company,  that  it  was  his  intention  to  resign  from  its  employ 
and  admitted  that  he  was  about  to  engage  in  the  manufacture 
of  artificial  leather  in  his  own  behalf  and  with  the  aid  and 
assistance  of  the  above-named  defendants,  Maurice  H.  Mas- 
land,  Charles  W.  Masland,  Frank  E.  Masland  and  J.  Wesley 
Masland,  utilizing  the  inventions,  discoveries  and  trade  secrets 
of  plaintiffs  in  so  doing. 

Plaintiffs  are  informed  and  believe,  and  therefore  aver,  that 
said  defendant,  Walter  E.  Masland,  with  the  aid  and  assist- 
ance of  the  above-named  defendants,  Charles  H.  Masland, 
Maurice  H.  Masland,  Charles  W.  Masland,  Frank  E.  Mas- 
land  and  J.  Wesley  Masland,  is  about  to  engage  in  the  manu- 
facture of  artificial  leather,  utilizing  plaintiffs'  secret  proces- 
ses, apparatuses,  articles  of  manufacture,  and  compositions  of 
matter  therein. 

And  for  as  much  as  plaintiffs  can  have  no  adequate  relief 
save  by  this  honorable  court,  plaintiffs  pray  as  follows : 

(a)  That  a  writ  or  writs  of  injunction  be  issued,  prelimi- 
nary until  the  hearing  of  this  cause  and  permanent  thereafter, 
enjoining  said  defendants,  Walter  E.  Masland,  Charles  H.  Mas- 
land,  Maurice  H.  Masland,  Charles  W.  Masland,  Frank  E. 
Masland  and  J.  Wesley  Masland,  their  officers,  clerks,  attor- 
neys, servants,  agents,  employes,  workmen,  and  confederates, 


BILLS    IN    SPECIAL    CASES.  525 

and  each  of  them,  from  directly  or  indirectly  making,  using, 
selling  or  disclosing  to  any  one  or  aiding  or  abetting  in  such 
making,  using,  selling  or  disclosing,  in  any  manner  or  by  any 
means,  any  and  all  secret  processes,  apparatuses,  articles  of 
manufacture,  or  compositions  of  matter,  or  any  new  and  useful 
improvements  thereof,  which  have  become  known  to  them  by 
reason  of  the  employment  of  said  Walter  E.  Masland  by  said 
plaintiff,  and  commanding  them  and  each  of  them  to  deliver 
forthwith  into  the  custody  of  the  clerk  of  this  court  in  sealed 
envelopes,  any  and  all  memoranda,  drawings,  specimens,  pa- 
pers, and  articles  of  any  description  relating  thereto,  in  their 
possession  or  under  their  control,  without  making  or  retaining 
any  copies  or  duplicates  thereof. 

(b)  That  said  defendants,  Walter  E.  Masland,  Charles  H. 
Masland,  Maurice  H.  Masland,  Charles  W.  Masland,  Frank 
E.  Masland  and  J.  Wesley  Masland,  may  be  decreed  to  pay  the 
costs  of  this  suit. 

(c)  That  plaintiffs  may  have  such  other  and  further  relief 
as  the  equity  of  the  case  may  require. 

(d)  To  the  end,  therefore,  that  said  defendants,  Walter  E. 
Masland,  Charles  H.  Masland,  Maurice  H.  Masland,  Charles 
W.  Masland,  Frank  E.  Masland  and  J.  Wesley  Masland,  may, 
if  they  can,  show  why  plaintiffs  should  not  have  the  relief 
prayed  for  and  may  full,  true  and  direct  answer  make,  accord- 
ing to  the  best  and  utmost  of  their  knowledge,  remembrance 
and  belief,  to  the  several  matters  hereinbefore  averred  and  set 
forth  as  fully  and  particularly  as  if  the  same  were  repeated, 
paragraph  for  paragraph,  and  the  said  defendants  specifically 
interrogated,  may  it  please  your  honors  to  grant  unto  plain- 
tiffs a  writ  of  subpoena  ad  respondendum,  issuing  out  of  and 
under  the  seal  of  this  honorable  court  directed  to  said  defend- 
ants, Walter  E.  Masland.  Charles  H.  Masland.  Maurice  H. 
Masland,  Charles  W.  IMasland,  Frank  E.  Masland  and  J.  Wes- 
ley Masland,  commanding  them  and  each  of  them  to  appear 
and  make  answer  to  this  bill  of  complaint  and  to  perform  and 


526  SUITS    IN    EQUITY. 

abide  by  such  orders  and  decrees  herein  as  to  this  court  may 
seem  just. 

E.  I.  Dtt  Pont  de  Nemours  Powder  Co., 
By  Alexis  I.  Du  Pont,  Secy.      [Seal.] 

Du  Pont  Fabrikoid  Co., 

By  R.  R.  M.  Carpenter.  [Seal.] 

Charles  N.  Butler, 

Solicitor  for  Plaintiff. 
Edwin  J.  Prindle, 
Warren  H.  Small, 

Of  Counsel.  • 

(1)  A.  PORM  OF  Bill — 

Rule  25  of  Rules  of  Practice  for  Courts  of  Equity  of  the  United  States, 
effective  February  1,  1913,  is  new,  and  prescribes  a  simpler  bill  of  com- 
plaint than  the  former  practice;  five  matters  are  noted  to  render  a  bill 
sufficient.  The  rule  does  not  require  any  particular  features  but  merely 
fortifies  a  bill  against  attack  if  it  contain  the  features  set  forth. 

a.  The  caption  is  contained  as  usual  in  the  above  form. 

b.  The  address  is  omitted  since  the  rule  does  not  mention  it ;  the  bill 
is  sufficient  without  it. 

c.  The  names,  citizenship,  and  residences  of  all  parties  are  set  forth 
in  the  first  paragraph. 

d.  A  simple  statement  of  the  ground  of  jurisdiction  is  made  in  the 
second  paragraph ;  venue  is  also  set  forth,  although  the  bill  is  sufficient 
without  it.  However,  it  can  not  be  objectionable,  since  it  discloses  to  the 
court  on  the  face  of  the  bill  the  venue  required  by  the  Judicial  Code,  Sec.  51. 

e.  A  simple,  straightforward  statement  of  the  ultimate  facts  is  made  in 
paragraph  3,  omitting  the  verbosity  and  circumlocution  that  had  become 
an  objectionable  feature  of  pleading  in  equity  under  the  old  rules. 

Such  pleading  as  here  given  was  not  prohibited  formerly,  but  it  was 
not  practiced.  This  rule  stresses  simplicity  and  generally  the  bar  has 
welcomed  the  change. 

f.  The  prayer  for  an  injunction  in  paragraph  3a  complies  with  fifth 
requirement  of  Rule  25;  paragraph  3b  is  unnecessary  under  the  new  rule; 
paragraph  3c  has  always  been  embodied  in  bills  of  complaint,  whereas 
paragraph  3d,  although  usual,  is  not  covered  by  Rule  25,  and  could  well 
be  omitted. 

The  prayer  for  subpoena  is  not  now  necessary;  Eq.  R.  12  provides 
for  the  issue  of  subpoena  and  in   Pittsburg  Water  Heater  Co.  v.  Beler 


BILLS    IN    SPECIAL    CASES.  527 

Water  Heater  Co.,  222  Fed.  950,  the  court  decided  that  a  court  order 
for  such  subpoena  is  not  needed,  for  the  clerk  shall  issue  the  same  under 
Rule  12. 

Under  present  equity  rules  answer  under  oath  is  not  called  for  in 
the  bill  of  complaint,  since  the  above  case  holds  that  that  matter  is  now 
covered  by  Rule  58  providing  for  discovery  by  interrogatories,  in  writing 
and  under  oath. 

Further,  also,  a  prayer  to  require  defendant  to  answer  is  not  necessary, 
except  in  the  case  covered  by  Rule  40,  relating  to  nominal  parties  defendant. 

B.  Signature  of  Counsel — 

Rule  24  requires  the  signature  to  the  bill  of  one  or  more  solicitors  of 
record,  and  the  signature  is  considered  as  a  certificate  by  each  solicitor 
(a)  that  he  has  read  the  pleading;  (b)  that  according  to  his  instructions 
it  is  well  grounded;  (c)  that  it  contains  no  scandalous  matter,  (d)  and  is 
not  interposed  for  delay. 

In  the  above  bill  the  parties  plaintiff  also  sign ;  no  rule  requires  or 
prohibits  this  nor  makes  any  provision  concerning  it. 

It  is,  therefore,  unnecessary,  but  not  open  to  valid  objection.  How- 
ever, in  the  interest  of  brevity,  simplicity  and  informality,  such  signatures 
should  be  dispensed  with. 

C.  Ultimate  Facts — 

Manifestly  a  variety  of  conditions  determine  what  may  properly  be 
pleaded ;  Rule  25  provides  that  ultimate  facts  only  need  be  stated  in  the 
bill;  and  hence  where  the  claim  is  based  on  written  documents  to  which 
defendants  are  parties,  plaintiff  need  set  out  only  the  execution  and  im- 
port of  such  writings.  Defendant's  motion  to  require  the  writings  to  be 
set  forth  by  copy  must  rest  on  an  averment  of  ignprance  of  the  docu- 
ments, otherwise  Rule  25  is  complied  with.  St.  Louis  Car  Co.  v.  Brill  Co., 
249  Fed.  502. 

This  rule  permits  the  inclusion  of  allegations  of  due  diligence  tending 
to  excuse  plaintiff  from  laches,  in  a  bill  of  complaint  alleging  lack  of 
good  faith  and  fair  dealing  under  a  contract.  Foster  v.  Callaghan  &  Co., 
248  Fed.  944. 


528  SUITS    IN    EQUITY. 

No.  432. 

A  Bill  by  Creditor  Praying  the   Appointment  of  a 
Receiver.  (1) 

The  District  Court  of  the  United  States 
for  the District  of . 

A.  B.,  Plaintiff,  y 

vs.  y  In  Equity. 

C.  &  D.  Railway  Co.,  Defendant,    j 

To  the  Judges  of  the  District  Court  of  the  United  States  for 
the District  of : 

A.  B.,  of ,  and  a  citizen  of  the  state  of ,  brings  this 

his  bill  on  his  own  behalf  and  that  of  all  other  creditors  and 
stockholders  of  the  C.  &  D.  Railway  Co.,  who  may  choose  to 
become  parties  to  this  suit  and  contribute  to  the  expenses  there- 
of, against  the  said  C.  &  D.  Railway  Co.,  which  is  a  corporation 

organized  and  existing  under  the  laws  of  the  state  of ,  and 

being  a  citizen  of  the  state  of ,  and  an  inhabitant  of  the 

■ district  of . 

And  plaintiff  shows  unto  your  honors  that  the  defendant 
was  duly  incorporated  and  organized  under  the  laws  of  the 

state  of on  the day  of ,  as  a  common  carrier 

company,  with  authority  to  lease,  hold,  and  operate  any  line  of 
railway  and  its  appendages  within  or  without  said  state  of 

;  that  the  capital  stock  of  said  company  was  three  million 

dollars,  divided  into  thirty  thousand  shares  of  one  hundred 
dollars  each,  which  stock  was  immediately  all  subscribed  and 

paid  up,  and  on  the day  of said  defendant  company 

duly  leased  from  the  Northern  Railway  Co.,  by  a  written  in- 
strument bearing  the  date  last  mentioned,  the  line  of  railway 
known  as  the  Northern  Railway,  which  had  been  constructed 
and  was  owned  by  the  said  Northern  Railway  Co,,  a  corpora- 
tion organized  and  existing  under  the  laws  of  the  state  of , 

said    Northern    Railway    extending    from    the    city    of    

through  the  state  of ,  to  the  city  of in  the  state  of 


BILLS    IN    SPECIAL    CASES.  529 

;  together  with  all  the  appurtenances  thereto  belonging 

as  specifically  set  forth  in  said  lease,  and  said  company  at  once 
took  possession  of  said  railway  and  has  ever  since  been  and 
still  is  engaged  in  operating  the  same  as  a  common  carrier  of 
goods  and  passengers  under  said  lease. 

The  entire  capital  of  said  company  was  shortly  after  its 
organization  invested  in  rolling  stock,  betterments,  and  com- 
pletion of  said  railway,  which  said  company  was  required  to 
make  by  the  terms  of  said  lease.  Upon  all  the  property  repre- 
sented by  such  investment  of  said  capital,  or  otherwise  acquired 
by  said  company?  a  lien  was  reserved  by  said  lease  prior  and 
preferably  to  any  and  all  other  liens  whatsoever,  to  secure  the 
payment  of  the  rents,  taxes  and  assessments  reserved  therein 
to  be  paid  by  said  company,  and  to  secure  the  faithful  perform- 
ance of  the  covenants  of  said  lease  by  it.  One  of  said  covenants 
was  that  said  company  would  provide  and  keep  the  said  line  of 
railway  supplied  with  rolling  stock  and  equipment  so  that  the 
business  of  the  same  should  be  preserved,  encouraged  and  de- 
veloped, and  at  all  times  be  done  with  safety  and  expedition 
and  the  public  accommodated  in  respect  thereto  with  all  prac- 
ticable conveniences  and  facilities,  and  that  the  future  growth 
of  such  business,  as  the  same  might  arise  or  be  reasonably  an- 
ticipated, should  be  fully  provided  for  and  secured. 

The  rental  reserved  in  said  lease  was  $800,000  per  annum 
during  the  first  five  years  of  the  term  thereof;  $900,000  per 
year  during  the  second  five  years;  $1,000,000  per  year  during 
the  third  five  years;  $1,090,000  per  year  during  the  fourth 
period  of  five  years,  and  $1,250,000  per  year  during  the  last 
period  of  five  years,  of  the  term  of  said  lease,  and  an  additional 
$12,000  each  year  payable  to  the  trustees  of  said  railway.  The 
present  amount  of  rental  which  said  company  is  required  to 
pay  under  said  lease  is  $1,000,000  per  year,  payable  quarterly, 
on  the  12th  day  of  January,  April,  July  and  October  in  each 
year.  The  rolling  stock  of  said  company  is  insufficient,  and 
what  it  has  is  greatly  in  need  of  renewal  in  order  to  enable  said 
company  to  maintain  said  railway  as  provided  in  said  lease. 


530  SUITS    IN    EQUITY. 

which  would  require  a  large  sum  of  money  to  be  expended 
each  year  in  addition  to  said  rent  and  to  the  ordinary  main- 
tenance of  said  property. 

The  earnings  of  said  company  have  for  some  time  past 
been  and  still  are  barely  sufficient  to  pay  said  rental,  leaving 
nothing  for  the  other  necessary  expenditures  aforesaid  nor  to 
meet  other  obligations,  and  for  the  past  seven  months  there 
has  been  a  deficiency  of  $123,000  in  such  earnings  in  meeting 
the  rent  and  other  obligations  of  said  lease.  Said  company 
has  no  property  but  said  leasehold  and  the  rolling  stock  and 
other  investments  aforesaid,  with  the  exception  of  a  small 
amount  of  real  estate,  whose  value  plaintiff  can  not  state, 
but  which  value  is  inconsiderable,  and  which  real  estate,  be- 
ing used  for  terminal  and  other  railroad  purposes,  can  not 
be  sold.  Said  company  has  no  property  which  can  be  pledged 
or  mortgaged  to  raise  money,  and  has  no  credit  to  borrow 
money  without  security. 

A  large  number  of  actions,  in  which  large  sums  of  money 
are  claimed,  are  pending  against  said  company  in  the  courts 

of  the  state  of ,  state  of ,  and  state  of ,  and  in 

the  federal  courts  therein,  and  the  superior  court  of ,  in 

an  action  which  has  been  pending  since  shortly  after  the 
organization  of  said  company,  and  has  greatily  embarrassed 
it  in  the  prosecution  of  its  business,  has  just  rendered  judg- 
ments against  said  company  in  favor  of  various  persons,  firms 
and  corporations,  amounting  in  the  aggregate  to  over  $300,- 
000,  exclusive  of  costs,  which  judgments  are  based  on  a 
fraudulent  issue  of  spurious  stock  certificates  by  its  former 
secretary  shortly  after  its  organization.  Said  company  has 
been  advised  by  its  counsel  to  prosecute  proceedings   in  the 

supreme  court  of for  the  reversal  of  such  judgments, 

and  said  company  desires  and  proposes  so  to  do.  In  order  to 
stay  execution  during  such  proceedings  in  error,  a  bond  is 
required  of  said  company  in  double  the  amount  of  said  judg- 
ments, conditioned  to  pay  the  same  in  case  they  shall  be 
affirmed.     Said  company  has  made  every  effort  in  its  power. 


BILLS    IN    SPECIAL    CASES.  531 

through  its  stockholders  and  otherwise,  to  procure  such  bond, 
but  is  wholly  unable  to  do  so.  It  has  sought  to  induce  said 
judgment  creditors  to  accept  a  first  mortgage,  subject  to  the 
lien  reserved  by  said  lease,  on  all  its  property  of  every  de- 
scription wherever  situated,  but  said  creditors  refuse  to  accept 
such  mortgage,  and  threaten  and  will,  unless  prevented  by  the 
granting  of  the  relief  hereinafter  prayed,  issue  and  levy  ex- 
ecutions upon  the  property  of  this  company  situated  in  the 

state  of  ,  and  commence  proceedings  to  subject  to  the 

payment  of  their  said  judgments  its  property  situated  in 
other  states,  thereby  preventing  said  company  from  carrying 
on  its  business,  disabling  it  from  paying  said  rental  and  com- 
plying with  the  obligations  of  said  lease,  and  causing  the  loss 
and  forfeiture  of  said  leasehold  estate  which  is  provided  by 
the  terms  thereof  in  case  of  the  failure  of  said  lessee  to  com- 
ply with  its  obligations  thereunder,  and  causing  the  entire 
•loss  to  the  stockholders  and  creditors  of  said  company  of  its 
rights,  franchises  and  property. 

PlaintiflF  is  a  stockholder  in  said  company  and  a  creditor 
thereof,    being   the    owner   of   a    certain   judgment    rendered 

against  it  in  the  supreme  court  of  the  state  of  for  the 

sum  of  seven  thousand  six  hundred  and  thirteen  dollars  and 
twenty  cents,  with  interest  and  costs,  which  judgment  is  and 
remains  wholly  due  and  unpaid,  and  the  said  company  has 
no  property  subject  to  levy  and  sale  upon  execution  to  pay 
the  same.  Said  company  has  judgments  against  it  in  all  the 
said  states  on  which  it  is  liable  to  execution,  and  has  a  large 
floating  debt,  amounting  to  between  $200,000  and  $300,000 
net.  which  it  has  not  sufficient  resources  or  credit  to  meet, 
and  said  company  is  insolvent.  Plaintiff  is,  furthermore, 
chairman  of  the  board  of  directors  of  said  company,  and  is 
charged  with  the  duty  of  protecting  and  preserving  said 
property  for  the  equal  benefit  of  its  creditors  and,  after  their 
payment,  for  the  benefit  of  the  stockholders  thereof,  and  he 
avers  that  there  is  no  adequate  remedy  at  law  for  the  pre- 
vention of  the  wrongs  and  injuries  threatened  as  aforesaid. 


532  SUITS    IN    EQUITY. 

^nd  for  the  preservation  and  protection  of  his  rights  above 
set  forth,  and  that  there  can  be  no  relief  therefor  only  in 
equity. 

Wherefore  plaintiff,  on  behalf  of  himself  and  of  all  others 
in  like  relation  to  the  said  company  and  its  property,  prays, 
the  premises  considered : 

First.  That  a  writ  of  subpoena  issue  against  the  defend- 
ant, the  C.  &  D.  Railway  Co.,  requiring  it  to  appear  in  this 
court  and  answer  this  bill  of  complaint,  and  to  stand  and 
abide  such  orders  and  decrees  as  the  court  may  from  time 
to  time  adjudge  and  enter  in  the  premises. 

Second.  That  the  court  will  fully  administer  as  a  trust 
fund  all  and  singular  the  property,  rights  and  franchises  be- 
longing to  said  company,  including  said  line  of  railway  with 
all  and  singular  its  appurtenances  so  held  by  lease  as  afore- 
said, and  will  marshal  its  assets  and  ascertain  the  several 
respective  liens  and  priorities  existing  thereon,  and  enforce 
and  decree  the  rights,  liens  and  equities  of  each  and  all  the 
stockholders  and  creditors  thereof  as  the  same  may  be  finally 
ascertained  and  decreed  by  the  court  upon  the  respective  in- 
terventions or  applications  of  each  and  every  creditor  or 
stockholder. 

Third.  That  for  the  purpose  of  enforcing  the  rights  and 
equities  of  the  creditors  of  said  company,  as  well  as  of  pro- 
tecting the  rights,  interests  and  property  of  said  company, 
and  to  secure  as  far  as  possible  the  performance  of  the  duties 
which  said  company  owes  to  the  public  as  a  common  carrier, 
as  well  as  to  preserve  the  unity  of  the  business  and  property 
of  said  railway  company  as  the  same  has  been  maintained 
and  operated  since  the  year  of  18 — ,  and  of  preventing  dis- 
ruption thereof  by  separate  executions,  attachments  or  seques- 
trations, and  of  preventing  the  loss  and  forfeiture  of  its  lease- 
fiold  and  other  property  by  reason  of  its  failure  to  pay  the 
rental  reserved  thereon  as  aforesaid,  this  court  forthwith  ap- 
point a  receiver  for  all  and  singular  the  property,  rights, 
assets  and  franchises  of  every  nature  and  wherever  situated, 


BILLS    IN    SPECIAL    CASES.  533 

held,  owned  or  controlled  by  said  company,  together  with  all 
leasehold  rights  and  contracts,  with  full  authority  to  manage 
and  operate  the  same  under  the  direction  of  the  court;  and 
that  all  of  the  officers,  managers,  superintendents,  agents  and 
employes  of  the  said  company  be  required  forthwith  to  de- 
liver up  to  such  receiver  the  possession  of  all  and  singular 
each  and  every  part  of  the  said  property  wherever  situated ; 
and  also  all  books  of  accounts,  vouchers  and  papers  in  any 
way  relating  to  its  business  or  the  operation  of  its  said  rail- 
way; and  for  an  injunction  restraining  each  and  every  of  the 
officers,  directors,  managers,  superintendents,  agents  and  em- 
ployes of  the  said  company  from  in  any  way  interfering  with 
the  possession  and  control  of  such  receiver  over  said  property. 
Fourth.  That  at  such  time  as  may  be  found  just  and 
proper,  the  property  of  said  company  may  be  ordered  to  be 
sold  and  the  proceeds  distributed  among  those  entitled  there- 
to, and  that  plaintiff  may  have  such  other  and  further  relief 
as  to  the  court  may  seem  proper  and  as  may  be  necessary  to 
fully  protect  and  enforce  his  rights  and  equities  and  those  of 
all  other  creditors  and  stockholders  of  said  company. 

X.  &  X.,  A.  B. 

Solicitors  for  Plaintiff. 

[Verification.] 

(1)   See  Beach's  Modern  Eq.  Pleadings.  Sec.  729,  and  notes. 

The  origin  of  the  jurisdiction  in  case  of  creditors'  bills  was  in  the  nar- 
rowness of  common-law  remedies  by  writs  of  execution,  which  were  con- 
fined to  those  estates  and  interests  recognized  by  the  law,  and  did  not 
extend  to  those  which  were  equitable  in  their  nature;  but  statutes  both  in 
England  and  in  many  of  the  states  have  greatly  extended  the  scope  of 
writs  of  execution  so  as  to  afford  an  adequate  remedy  in  cases  where 
formerly  the  party  was  compelled  to  resort  to  a  creditor's  bill.  Where 
the  remedy  still  exists,  a  judgment  must  first  be  obtained,  and  certain 
steps  taken  towards  enforcing  it  before  a  bill  can  be  filed.  See  Pom.  Eq. 
Jur.,  Sec.  1415;  Hollens  v.  Brierfield  Coal  &  Iron  Co.,  150  U.  S.  371.  37 
L.  Ed.  1113;  Johnson  v.  Waters,  111  U.  S.  640.  28  L.  Ed.  547,  and  Ager 
V.  Murray,  105  U.  S.  126,  26  L.  Ed.  942;  Case  v.  Beauregard,  99  U.  S.  119, 
25  L.  Ed.  370;  Maxwell  v.  McDaniels,  184  Fed.  311;  Natl.  Tube  Works 
Co.  V.  Ballue.  146  U.  S.  517,  36  L.  Ed.  1070;  Miller  v.  Sherry,  2  Wall.  237, 
17  L.  Ed.  827;  Jones  v.  Green,  1  Wall.  330,  17  L.  Ed.  553,  and  note 


534  SUITS    IN    EQUITY. 

No.  433. 

Stockholder's  Bill  Against  Building  Association. (1) 

[Caption   and   intra duction.'\ 

The  bill  of  complaint  of  A.  B.  filed  in  behalf  of  himself 
and  all  other  creditors  and  stockholders  of  the  C.  D.  Building 
&  Loan  Association,  against  the  C.  D.  Building  &  Loan  Asso- 
ciation, defendants. 

Complainant  respectfully  shows  unto  your  honors : 

First.     That  he  is  a  citizen  and   resident  of  the  state  of 

,  and  that  the  C.  D.  Building  &  Loan  Association,  named 

as  defendant  in  the  caption,  is  a  corporation  duly  organizefl 

and  existing  under  the  laws  of  the  state  of  ,   with   its 

home  office  in  the  county  of and  state  of ,  and  that 

it  is  a  citizen  and  resident  of  the  state  of  and  of  said 

county  of  ,  and  that  the  amount  in  controversy  in  this 

cause  as  hereinafter  shown  is  of  more  than  two  thousand 
dollars  in  value,  exclusive  of  interest  and  costs. 

Second.  That  complainant  is  a  member  of  and  stockholder 
in  said  defendant  company,  the  C.  D.  Building  &  Loan  Asso- 
ciation, and  it  is  justly  indebted  to  him  on  his  stock  in  the 
sum  of  two  thousand  eight  hundred  dollars  ($2,800).  As 
such  member  he  is  the  owner  of  fourteen  (14)  shares  of  the 
thirty-fifth  series  of  two  hundred  dollars  each  of  the  paid-up 
stock  of  said  association,  and  upon  said  stock  he  has  paid  into 
said  association  said  sum  of  $2,800,  pursuant  to  and  by  virtue 
of  the  constitution  and  by-laws  of  said  association. 

Third.  Complainant  is  informed  and  believes  and  there- 
upon charges  that  the  nominal  assets  of  the  defendant  amount 
to  a  little  upwards  of  sixty  thousand  dollars,  consisting  prin- 
cipally of  notes  and  mortgages  of  the  borrowing  members  of 
said  association,  and  of  fourteen  pieces  of  real  estate  which 
said  company  in  the  course  of  its  business  has  been  compelled 
to  buy  in  upon  foreclosure  of  mortgages  given  to  it.  A  list 
of  the  mortgages  owned  by  defendant  is  herewith  filed  as 
exhibit  "A"  to  this  bill,  and  a  description  of  said  pieces  of 


BILLS    IN    SPECIAL    CASES.  535 

real  estate  owned  by  defendant  is  herewith  filed  marked  as 
exhibit  "B"  to  this  bill. 

Fourth.  Complainant  is  informed  and  believes  and  there- 
upon charges  that  the  liabilities  of  defendant  association 
amount  to  at  least  four  thousand  dollars  more  than  its  assets ; 
that  holders  of  upwards  of  four  thousand  dollars  of  invest- 
ment stock  in  said  association  have  given  notice  of  with- 
drawal, and  the  association  has  no  money  with  which  to  pay 
ofif  the  owners  of  said  stock;  that  because  of  the  recent  de- 
cision of  the  supreme  court  of  Tennessee  with  regard  to  build- 
ing and  loan  associations,  and  the  hopes  raised  thereby  in 
the  breasts  of  certain  borrow^ing  members  that  they  may  be 
able  to  prey  upon  the  assets  of  defendant  company,  numerous 
suits  have  been  brought  against  defendant  and  are  now  pend- 
ing in  the  courts  of  Knox  county,  and  others  are  threatened; 
and  that  because  of  the  foregoing  facts  said  association  is 
greatly  embarrassed  and  will  be  unable  to  meet  its  liabilities 
as  they  fall  due.  Complainant  charges  upon  information  and 
belief  that  this  state  of  affairs  has  been  brought  about  by 
the  general  shrinkage  in  values  of  real  estate,  by  the  failure 
of  members  to  pay  their  dues  promptly  as  they  mature,  and 
by  the  panicky  condition  of  building  and  loan  association 
affairs.  Complainant  is  informed  and  believes  and  thereupon 
charges  that  said  defendant  company  is  insolvent.  It  is  issu- 
ing no  new  stock  and  is  making  no  loans  and  has  ceased  to 
do  business. 

Under  this  state  of  matters,  it  is  impossible  for  said  asso- 
ciation to  further  accomplish  the  purposes  of  its  said  incor- 
poration. 

Fifth.  Complainant  further  shows  unto  your  honors  that 
many  persons  are  threatening  to  bring  suit  against  said  asso- 
ciation, and  unless  restrained  therefrom  by  injunction  from 
your  honors'  court  they  will  bring  such  suits  and  involve 
defendant  in  a  multiplicity  of  suits  and  heavy  costs. 

Complainant  can  have  no  adequate  relief  except  in  this 
court,  and  by  having  said  corporation  wound  up  as  an  insol- 


536  SUITS    IN    EQUITY.    . 

vent  corporation  and  its  assets  collected  and  distributed  among" 
its  creditors  and  stockholders  according  to  their  rights  and 
equities. 

Sixth.     The  premises  considered,  complainant  prays : 

1.  That  he  may  be  allowed  to  file  this  bill  in  this  honor- 
able court  as  a  general  creditors'  bill  in  behalf  of  himself  and 
all  other  creditors  and  stockholders  of  the  C.  D.  Building 
&  Loan  Association,  and  that  by  subpoena  to  answer  issued 
from  your  honors'  court  under  the  seal  thereof,  said  C.  D. 
Building  &  Loan  Association  be  made  a  defendant  hereto, 
and  be  required  to  answer  this  bill. 

2.  That  all  the  bona  fide  creditors  of  the  defendant 
company  be  required  to  prosecute  their  claims  and  demands 
against  said  company  in  this  court  and  in  this  cause,  and  to 
this  end  that  they  be  allowed  to  file  their  petitions  exhibiting 
their  respective  claims  and  demands,  and  to  prove  the  same 
according  to  the  usual  practice  of  this  court,  and  that  they 
be  granted  all  the  benefits  of  this  proceeding  to  which  com- 
plainant may  be  entitled,  and  that  the  clerk  be  directed,  by 
due  publication,  to  notify  all  creditors  of  said  association  to 
file  their  claims  in  this  cause  within  a  time  to  be  fixed  by 
your  honors. 

3.  That  all  the  creditors  of  said  association  be  enjoined 
from  suing  the  same  except  by  petition  in  this  cause. 

4.  That  a  receiver  be  appointed  to  take  into  his  pos- 
session all  of  the  property  of  the  defendant  association  of 
every  sort  whatsoever,  whether  real,  personal  or  mixed,  and 
that  said  receiver  be  empowered  and  directed  to  convert  all 
of  said  property  into  money  at  the  earliest  practicable  mo- 
ment, and  to  collect  all  debts  due  the  company,  and  to  bring 
such  suits  as  may  be  necessary  to  accomplish  that  end,  or 
assert  its  rights  or  claims  in  the  property,  and  to  do  all  other 
acts  necessary  to  collect  or  protect  the  assets  of  the  company. 

5.  That  all  necessary  and  proper  accounts  be  taken  and 
stated  to  show  the  assets,  creditors,  shareholders  and  debts  of 
said  association,  and  the  amount  due  to  each  of  said  creditors 


BILLS   IN    SPECIAL    CASES.  537 

and  shareholders,  and  for  all  purposes  proper  to  the  winding- 
up  of  said  defendant  company. 

6.  That  all  proper  allowances  be  made  for  the  receiver 
and  for  counsel  fees. 

7.  That  said  defendant  association  be  wound  up  and  its 
assets  distributed  in  this  cause. 

8.  And  that  complainant  and  all  other  creditors  and  share- 
holders of  said  defendant  corporation  be  granted  all  such 
other,  further  and  general  relief  as  they  may  be  entitled  to 
upon  the  facts  and  the  rules  of  equity. 

This  is  the  first  application  for  an  injunction  in  this  behalf, 
and  is  the  first  application  for  a  receiver  in  this  behalf. 

R.  X.,  A.  B. 

Solicitor  for  Complainant. 

(1)  As  to  the  power  of  a  court  of  equity  to  entertain  such  a  bill  see 
Towle  V.  Am.  Building,  Loan  &  Ins.  Co.,  61  Fed.  446;  Universal  Sav. 
&  Trust  Co.  V.  Stoneburner,  113  Fed.  2S1 ,  C.  C.  A.;  Coltrane  v.  Blake, 
11(3  Fed.  789,  C.  C.  A. 


No.  434. 

Stockholders  Against  Corporation  and  Officers  Charging 
Conspiracy  to  Injure  the  Corporation.  (1) 

[Caption.] 

The  complainants,  suing  on  behalf  of  themselves  and  on 
behalf  of  all  other  stockholders  of  the  defendant,  American 
Blower  Company,  who  may  choose  to  come  in  and  contribute 
to  the  expenses  of  this  suit,  bring  this,  their  bill  of  complaint, 
against  American  Blower  Company,  Eugene  N.  Foss,  Galen 
L.  Stone  and  Charles  H.  Gifford,  and  respectfully  show  unto 
your  honors  the  following  statements  of  the  grounds  upon 
which  the  jurisdiction  of  this  court  depends,  and  of  the  ulti- 
mate facts  upon  which  they  ask  relief,  all  of  which  facts  they 
are  informed  and  believe  and  therefore  duly  allege  to  be  true : 


538  SUITS    IN    EQUITY. 

For  a  First  Cause  of  Action. 

First.  The  complainants,  Samuel  Cleland  Davidson  and 
Hugh  T.  Coulter,  are  subjects  of  the  king  of  Great  Britain 
and  residents  of  Belfast,  Ireland,  and  are  now  and  have  been 
continuously  since  the  organization  of  defendant,  American 
Blower  Company,  and  were  at  the  time  of  the  transactions 
hereinafter  complained  of,  the  owners  and  holders  of  record 
of  1,100  and  29  shares,  respectively,  of  the  stock  of  the  said 
defendant,  American  Blower  Company. 

The  complainants,  Helen  Lucy  Coulter  and  Alice  Mary 
Churchill,  are  subjects  of  the  king  of  Great  Britain  and  resi- 
dents of  Belfast,  Ireland,  and  are  now  and  have  been  con- 
tinuously since  the  year  1912,  and  were  at  the  time  of  the 
transactions  hereinafter  complained  of,  the  owners  and  hold- 
ers of  record  of  50  and  30  shares,  respectively,  of  the  stock 
of  the  said  defendant,  American  Blower  Company. 

The  complainant,  Eugene  V.  Myers,  is  a  resident  of  East 
Orange,  state  of  New  Jersey,  and  is  a  citizen  of  said  state, 
and  is  now  and  has  been  continuously  since  the  year  1909, 
and  was  at  the  time  of  the  transactions  hereinafter  complained 
of,  the  owner  and  holder  of  record  of  five  shares  of  the  stock 
of  the  said  defendant,  American  Blower  Company. 

The  defendant,  American  Blower  Company,  is  a  corpora- 
tion duly  organized  and  existing  under  the  laws  of  the  state 
of  New  York,  and  is  a  resident  of  the  northern  district  of 
said  state,  having  its  principal  office  and  place  of  business  at 
Green  Island,  county  of  Albany,  state  of  New  York ;  that  the 
defendant,  Eugene  N.  Foss,  is  a  citizen  and  resident  of  the 
commonwealth  of  Massachusetts ;  that  the  defendant,  Galen 
L.  Stone,  is  a  citizen  and  resident  of  the  commonwealth  of 
Massachusetts,  and  that  the  defendant,  Charles  H.  Gifford, 
is  a  citizen  and  resident  of  the  state  of  Michigan. 

Second.  The  grounds  upon  which  the  jurisdiction  of  this 
court  depends  in  this  suit  are  the  diversity  of  citizenship  be- 
tween the  several  plaintiffs  and  each  and  all  of  the  defend- 
ants, the  residence  of  the  defendant.  American  Blower  Com- 


BILLS    IN    SPECIAL    CASES.  539 

pany,  which  is  the  only  necessary  party  defendant  in  the 
northern  district  of  New  York,  and  the  local  nature  of  the 
suit ;  i.  c,  it  is  a  suit  to  enforce  an  equitable  claim  to  personal 
property  within  the  district  where  the  suit  is  brought  in  ac- 
cordance with  the  meaning-  and  intent  of  Section  57  of  the 
Judicial  Code  (Act  of  March  3,  1911). 

The  matter  in  controversy  exceeds,  exclusive  of  interest 
and  costs,  the  sum  or  value  of  three  thousand  dollars,  and 
that  this  suit  is  not  a  collusive  one  to  confer  on  a  court  of 
the  United  States  jurisdiction  of  a  case  of  which  it  would 
not  otherwise  have  cognizance. 

Complainants  have  no  plain,  complete  or  adequate  remedy 
at  law  and  adequate  relief  can  only  be  administered  in  a  court 
of  equity. 

That  in  these  ways  the  said  defendants  threaten  to  and 
will,  unless  restrained  by  this  court,  waste  and  destroy  the 
assets  and  business  of  the  defendant,  the  American  Blower 
Company,  to  the  great  and  irreparable  damage  of  the  said 
company  and  particularly  of  the  minority  stockholders  there- 
of, including  the  complainants  herein. 

Seventeenth.  Complainants  have  made  a  demand  upon  the 
board  of  directors  of  the  defendant,  American  Blower  Com- 
pany, to  institute  a  suit  or  proceeding  to  prevent  the  defend- 
ants, Foss,  Stone  and  GifFord,  from  carrying  out  the  illegal 
plan  and  conspiracy  above  set  forth,  and  to  obtain  an  injunc- 
tion against  the  said  defendants  voting  the  stock  of  the  said 
American  Blower  Company  standing  in  the  names  of  said 
defendants.  A  copy  of  the  letter  in  which  this  demand  was 
made  is  hereto  annexed,  marked  Exhibit  A,  and  thereby  made 
a  part  of  this  complaint  as  fully  as  though  set  forth  at  length 
herein. 

The  defendant,  American  Blower  Company,  and  its  officers 
and  directors  have  thereupon  declined  to  institute  any  such 
suit  or  proceeding.  A  copy  of  the  letter  and  the  resolutions 
of  the  board  of  directors  in  which  this  refusal  is  set  forth  is 


540  SUITS    IN    EQUITY. 

hereto  annexed,  marked  Exhibit  B,  and  thereby  made  a  part 
of  this  complaint  as  fully  as  though  set  forth  at  leng-th  herein. 
Complainants  were  thereupon  compelled  to  institute  the 
present  suit  for  the  benefit  of  the  defendant  corporation  and 
of  themselves  and  other  stockholders  similarly  situated.  No 
effort  has  been  made  to  obtain  action  by  the  majority  share- 
holders of  the  defendant,  American  Blower  Company,  for  the 
reason  that  under  the  facts  in  this  case  the  same  is  unneces- 
■sary  and  for  the  reason  that  the  majority  shareholders,  to- 
wit,  the  defendants,  Foss,  Stone  and  Gifford,  are  the  persons 
who  are  threatening  this  wrong  to  the  corporation  and  whose 
actions  it  is  the  purpose  of  this  suit  to  prevent. 

For  a  Second,  Separate  and  Distinct  Cause  of  Action. 

Eighteenth.  Complainants  repeat  and  reallege  each  and 
every  allegation  contained  in  paragraph  first  of  this  bill  of 
complaint  to  which  reference  is  hereby  made  as  fully  as 
though  set  forth  at  length  herein. 

Nineteenth.  The  grounds  upon  which  the  jurisdiction  of 
this  court  depends  are  the  diversity  of  citizenship  between 
the  several  plaintiffs  and  each  and  all  of  the  defendants,  the 
residence  of  the  defendant,  American  Blower  Company,  which 
is  the  only  necessary  party  defendant,  in  the  northern  district 
of  New  York,  and  the  fact  that  the  matter  in  controversy 
arises  under  a  law  of  the  United  States,  to-wit,  the  Act  of 
Congress  of  July  2,  1890,  entitled,  "An  act  to  protect  trade 
and  commerce  against  unlawful  restraints  and  monopolies." 

Your  complainants  further  allege  that  the  matter  in  con- 
troversy exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  three  thousand  dollars  ($3,000),  and  that  this  suit 
is  not  a  collusive  one  to  confer  upon  a  court  of  the  United 
States  jurisdiction  in  a  case  of  which  it  would  not  otherwise 
have  cognizance. 

Complainants  have  no  plain,  adequate  or  complete  remedy 
at  law  and  adequate  relief  can  only  be  administered  in  a  court 
of  equity. 


BILLS   IN    SPECIAL    CASES.  541 

Tzccntieth.  Complainants  repeat  and  reallege  each  and 
ev'ery  allegation  contained  in  paragraphs  numbered  Third, 
Fourth,  Fifth,  Sixth,  Seventh,  Eighth,  Ninth,  Tenth  and 
Eleventh  of  this  bill  of  complaint,  to  which  paragraphs  refer- 
ence is  hereby  made  as  fully  as  though  they  were  set  forth 
at  length  herein. 

Twenty-sixth.  Your  complainants  repeat  and  reallege  each 
and  every  other  allegation  contained  in  paragraph  Seven- 
teenth of  this  complaint,  to  which  reference  is  hereby  made 
as  fully  as  though  it  were  set  forth  at  length  herein. 

Wherefore  and  by  reason  of  the  premises,  your  complain- 
ants, on  behalf  of  themselves  and  all  other  stockholders  of 
the  defendant,  American  Blower  Company,  who  are  similarly 
situated  and  who  may  intervene  in  this  cause,  pray  this  honor- 
able court : 

1.  That  a  permanent  injunction  issue  against  the  defend- 
ant, American  Blower  Company,  and  against  the  defendants, 
Foss,  Stone  and  Gifford,  restraining  them  and  each  of  them 
from  wasting  the  assets  and  property  of  the  defendant,  Amer- 
ican Blower  Company,  and  particularly  from  taking  any 
action  on  behalf  of  the  American  Blower  Company  to  destroy 
or  diminish  the  right  of  the  American  Blower  Company,  or 
of  the  Sirocco  Engineering  Company,  in  the  Davidson  pat- 
ents or  in  the  decree  obtained  in  the  suit  brought  by  the 
Sirocco  Engineering  Company  against  the  B.  F.  Sturtevant 
Company,  above  mentioned,  and  from  doing  any  act  or  thing, 
whatsoever,  in  furtherance  of  the  conspiracy  described  under 
the  cause  of  action  numbered  First  herein. 

2.  That  a  permanent  injunction  issue  against  the  defend- 
ants, and  each  of  them,  from  combining  or  conspiring  to 
monopolize,  or  to  attempt  to  monopolize,  or  from  directly  or 
indirectly  monopolizing,  or  attempting  to  monopolize,  the 
manufacture  and  sale  of,  or  the  trade  or  commerce  in,  fans  and 
blowers,  kindred  appliances  and  appurtenances,  within  the 
state   of  New  York  and   among  the   several   states   or  with 


542  SUITS    IN    EQUITY. 

foreign  nations,  and  from  doing  any  act  or  thing,  whatsoever, 
in  furtherance  of  the  combination  or  discovery  described  in 
cause  of  action  nunibered  Second  herein. 

3.  That  a  permanent  injunction  issue  against  the  defend- 
ants and  each  of  them  from  combining  or  conspiring  to  re- 
strain trade  or  commerce  among  the  several  states  or  with 
foreign  nations  in  fans,  blowers,  kindred  appliances  and  ap- 
purtenances, and  from  directly  or  indirectly  restraining  or 
attempting  to  restrain  competition  in  the  state  of  New  York 
in  the  supply  or  price  of  such  commodities. 

4.  That  a  permanent  injunction  issue  enjoining,  on  such 
terms  and  for  such  period  as  the  court  may  prescribe,  the  de- 
fendants, Foss,  Stone  and  Gifford,  and  each  of  them,  from 
voting  at  any  stockholders'  meeting  of  the  American  Blower 
Company  any  shares  of  stock  of  the  American  Blower  Com- 
pany owned  by  them,  or  any  of  them,  whether  by  proxy  or 
otherwise,  and  whether  said  stock  stands  in  the  names  of  the 
said  defendants  or  in  the  names  of  brokers  or  other  indi- 
viduals. 

5.  That  a  permanent  injunction  issue  upon  similar  terms 
against  all  persons  whose  names  are  unknown,  enjoining  them 
from  voting  by  means  of  proxies  or  otherwise  at  any  stock- 
holders' meeting  of  the  American  Blower  Company  the  shares 
of  stock  in  the  American  Blower  Company  owned  by  the  de- 
fendants, Foss,  Stone  and  Gifford,  or  any  of  them,  or  by  any 
person  affiliated  w^ith  or  under  the  control  or  domination  of 
the  said  Foss,  Stone  and  Gifford  or  of  the  B.  F.  Sturtevant 
Company. 

6.  That  a  permanent  injunction  issue  upon  similar  terms 
against  the  American  Blower  Company,  its  officers,  directors, 
agents  and  servants  and  against  the  persons  whose  names  are 
unknown,  who  shall  act  as  inspectors  of  election  at  any  stock- 
holders' meeting,  and  each  and  every  one  of  them,  from 
recognizing  as  valid  any  votes  cast  by  the  said  defendants, 
Foss,  Stone  and  Gifford,  or  any  or  all  of  them,  whether  by 
proxy  or  otherwise,  and  from  recognizing  as  valid  any  votes 


BILLS    IX    SPECIAL    CASES,  543 

cast  by  any  persons  who  are  affiliated  with  or  under  the  domi- 
nation and  control  of  the  defendants,  Foss,  Stone  and  Gifford, 
or  any  of  them,  or  who  are  acting  for  the  benefit  of  the  B.  F. 
Stiirtevant  Company,  and  from  permitting  the  said  defend- 
ants, Foss  Stone  and  Gifford,  or  any  of  them,  or  any  such 
persons,  to  vote  any  of  the  stock  standing  in  their  names, 
W'hether  by  proxy  or  otherwise. 

7.  That  a  preliminary  and  temporary  injunction  issue  dur- 
ing the  pendency  of  this  suit  against  the  defendants,  Ameri- 
can Blower  Company,  Foss,  Stone  and  Gifford,  and  the  offi- 
cers, agents  and  servants  of  the  defendant,  American  Blower 
Company,  and  persons  whose  names  are  unknown,  restraining 
tliem  and  each  of  them  from  any  of  the  acts  more  specifically 
set  forth  in  the  prayers  for  relief  above  stated. 

8.  That  the  complainants  have  such  other  and  further 
relief  as  may  be  just  and  equitable. 

And  to  the  end  that  your  complainants  may  obtain  the  re- 
lief to  which  they  are  justly  entitled,  may  it  please  your  honor 
to  grant  unto  your  plaintiffs  rights  of  subpoena  directed 
to  the  defendants,  American  Blower  Company,  Eugene  N. 
Foss,  Galen  L.  Stone  and  Charles  H.  Gifford,  commanding 
them  and  each  of  them  to  appear  herein  and  answer,  but  not 
under  oath  (answer  under  oath  being  hereby  expressly 
waived),  the  allegations  contained  in  this  your  complainants* 
bill,  and  to  abide  and  perform  such  order  or  decree  as  this 
honorable  court  may  make  in  the  premises,  and  your  orators 
will  ever  pray. 

X.  Y.,  Solicitor.  A.  B.  and  C.  D. 

[Verification.] 

(1)  Heinz  v.  Natl.  Bank  of  Commerce,  237  Fed.  942,  150  C.  C.  A.  592. 

Discussion  by  Judge  Booth,  of  Eq.  Rule  27  at  pages  944  to  949,  in 
which  he  reviews  many  cases. 

In  Forbes  v.  Wilson,  243  Fed.  264,  the  court  discusses  whether  the  bill 
complies  with  the  requirements  of  Eq.  Rule  27,  holding  that  it  does. 

The  rule  receives  further  discussion  and  application  in  Krouse  v. 
Brevard  Tannin  Co.,  249  Fed.  538,  161  C.  C.  A.  564,  in  which  it  is  held 
that  the  plaintiff  need  not  set  forth  with  particularity  his  efforts  to  secure 


544  SUITS    IN    EQUITY. 

corporate  action  desired,  where  the  allegations  show  clearly  that  by  reason 
of  antagonistic  control  such  efforts  would  have  been  futile. 

Equity  Rule  21  has  no  application  to  a  bill  by  stockholder  in  which 
the  plaintiff  asks  to  enjoin  the  corporation  from  doing  an  illegal  act. 
General  Investment  Co.  v.  L.  S.  and  M.  S.  Ry.,  250  Fed.  160. 

In  Wathen  v.  Jackson  Oil  and  Refining  Co.,  235  U.  S.  635,  59  L.  Ed. 
395,  the  court  decides  that  the  plaintiff  failed  in  the  bill  to  meet  the  re- 
quirements of  the  rule,  and  cite  many  cases  at  page  640. 

See  notes  to  Fleming  v.  Warrier  Copper  Co.,  51  L.  R.  A.  (N.S.)  99; 
Continental  Securities  Co.  v.  Belmont,  51  L.  R.  A.  (N.S.)  Ill,  and  Kelly 
v.  Thomas,  51  L.  R.  A.   (N.S.)    123. 

See  also,  Hopkin's  new  Federal  Equity  Rules,  pp.  172  to  176,  and 
Foster's  Fed.  Prac,  5th  ed.,  Sec.  145. 


No.  435. 

Creditors'  Bill  Against   a   Corporation  and  its  Stockholders 
to  Enforce   Statutory  Liability.  (1) 

[Caption   and   introduction.'] 

And  the  plaintiffs  show  that  the  capital  stock  of  said  cor- 
poration was  fixed  and  limited  by  said  corporation  at  seven 

hundred  and  fifty  thousand  dollars;  and  that  on  the  of 

,  in  the  year  ,  and  before  the  whole  amount  of  the 

capital  stock  fixed  and  limited  by  said  corporation  had  been 
fully  paid  in,  and  before  any  certificate  thereof  had  been  made 
and  recorded  as  prescribed  by  law,  the  said  The  C.  D.  Co., 
by  G.  McK.,  its  treasurer,  duly  authorized  thereto,  made  and 
delivered  to  the  plaintiffs  three  several  promissory  notes  in 

writing,  dated  the  said day  of ,  one  for  the  sum  of 

fifty  thousand  dollars,  the  other  two  for  fifteen  thousand  dol- 
lars each,  and  thereby,  for  value  received,  promised  the  plain- 
tiffs to  pay  to  them  or  their  order  the  amount  of  said  notes, 

to-wit,  eighty  thousand  dollars,  on  the  day  of  ,  in 

the  year  ,  with  interest  from  the  day  of  ,  of 

the  year  ,  copies  of  which  notes,  with  the  indorsements 

thereon,  are  set  out  in  the  copy  of  judgment  hereto  annexed. 

And  the  plaintiffs  further  show  that  at  the  time  the  said 
The  C.  D.  Co.  made  and  delivered  said  notes  to  the  plaintiffs, 
and  from  the  time  of  its  incorporation  and  organization  until 


BILLS   IN    SPECIAL    CASES.  545 

the  day  of ,  in  the  year  ,  the  said  The  C.  D. 

Co.  had  not  given  notice  annually,  as  required  by  the  laws  of 

the   said   state   of  ,    in   some   newspaper   printed    in    the 

county  where  the  works  of  said  corporation  were  established, 
to-wit,  the  county  of  E.,  or  in  any  newspaper  printed  in  any 
other  county,  of  the  amount  of  all  assessments  voted  by  the 
corporation  and  actually  paid  in;  nor  had  it  given  notice  in 
any  newspaper  of  the  amount  of  all  existing  debts  due  from 
said  corporation. 

And  the  plaintiffs  further  show  that  from  the  time  of  the 
incorporation  and  organization  of  the  said  The  C.  D.  Co.  to 
the  time  said  corporation  made  and  delivered  said  notes  to 
the  plaintiffs,  and  for  a  long  time  thereafter,  the  capital  stock, 
fixed  and  limited  by  said  corporation  as  aforesaid,  had  not 
been  fully  paid  in;  nor  has  there,  from  the  time  of  its  or- 
ganization to  the  present  time,  been  any  certificate  of  the  pay- 
ment of  said  capital  stock  made  and  recorded  by  said  corpora- 
tion as  by  law  provided. 

And  the  plaintiffs  further  show  that  on,   to-wit,  the  

day  of ,  in  the  year ,  they  commenced  a  suit  against 

the  said  The  C.  D.  Co.  upon  the  aforesaid  notes,  returnable  to 

the court,  then  next  to  be  holden  at  N.,  within  and  for 

the  said  county  of  E.,  on  the  first  Monday  of  ,  in  the 

year ,  and  duly  entered  said  suit  in  said  court,  and  there 

prosecuted  the  same  to  judgment.     And  at  said  term  of  the 

said  court,  on,  to-wit,  the day  of ,  in  the  year , 

by  consideration  of  the  justice  of  said  court,  judgment 

was  rendered  in  said  suit  against  said  The  C.  D.  Co.  in  favor 

of  the  plaintiffs  for  the  sum  of  $ ,  debt,  and  $ ,  costs 

of  suit,   and   execution   was   thereupon   issued  by   said  

court,  on,  to-wit,  the day  of  said ,  against  said  The 

C.  D.  Co.  in  favor  of  the  plaintiffs  for  the  said  sum  of  $ , 

debt,   and  $ ,   costs   of  suit ;   copies   of  which   judgment, 

execution  and  officer's  return  upon  said  execution  are  hereto 
annexed. 


546  SUITS    IN    EQUITY. 

And   the  plaintiffs   further  show  that   on,   to-wit,   the   said 
day  of  ,   the  day  of  issuing   said   execution,   they 


placed  for  collection  said  execution  in  the  hands  of  one  A.  F., 
a   deputy  sheriff,   qualified  to   collect,   serve  and   return   said 

execution.     And  the  said  deputy  sheriff,  on,  to-wit,  the  

day  of ,  made  demand  upon  the  said  The  C.  D.  Co.  for 

the  payment  of  the  amount  due  to  the  plaintiffs ;  and  for 
which  judgment  and  execution  had  been  rendered  and  issued 
in  said  suit  as  aforesaid. 

And  the  plaintiffs  show  that  tlie  said  The  C.  D.  Co.  did 
neglect,  for  the  space  of  thirty  days  after  said  demand  by  said 
deputy  sheriff,  holding  said  execution,  to  exhibit  to  said 
deputy  sheriff  real  or  personal  estate  belonging  to  said  cor- 
poration, subject  to  be  taken  on  execution,  sufficient  to  satisfy 
said  execution,  or  any  part  thereof.  And  the  said  corpora- 
tion has  never  exhibited  to  said  deputy  sheriff  any  estate, 
real  or  personal,  from  which  he  might  satisfy  said  execution 
in  whole  or  in  part ;  and  the  said  corporation  has  ever  since 
neglected  and  refused  to  pay  the  same,  or  any  part  thereof; 
and  the  said  deputy  sheriff  duly  returned  said  execution  into 

the  clerk's  office  of  said  court,  at  S.,  in  said  county  of 

E.,  in  no  part  satisfied ;  and  there  is  now  due  to  the  plaintiffs 
upon  said  judgment,  rendered  upon  said  notes,  the  said  sum 

of  $ ,  debt,  and  $ ,  costs  of  suit,  making  in  all  $ , 

with  interest  from  the  said day  of ,  tiie  day  of  the 

date  of  said  judgment. 

And  the  plaintiffs  further  show  that  at  the  time  when  said 

judgment  debt  was  contracted,  on.  to-wit,  the  day  of 

,  in  the  year ,  the  day  of  the  date  of  said  notes,  and 

during  the  time  from  and  after  the  said  day  of  , 


and  before  the  capital  stock  of  said  corporation,  fixed  and 
limited  as  aforesaid,  was  fully  paid  in,  and  before  any  certifi- 
cate that  said  capital  stock  had  been  paid  in  was  made  and 
recorded,  as  by  law  required,  and  from  and  after   the  said 

day  of ,  and  before  any  notice  of  the  assessments 

voted  by  said  corporation  and  actually  paid  in  had  been  given, 


BILLS   IN    SPECIAL    CASES.  547 

in  any  newspaper  printed  in  said  county  of  E.,  or  printed  in 

any  other  county ;  and  from  and  after  said day  of , 

and  before  any  notice  of  the  amount  of  all  existing  debts  due 
from  said  corporation  had  been  given  in  any  such  newspaper 
as  by  law  required,  and  at  the  time  when  your  orators  com- 
menced their  suit  aforesaid  against  the  said  The  C.  D.  Co., 
and  in  which  judgment  aforesaid  was  rendered,  the  following 
named  persons  became,  and  were,  stockholders  in  the  said 
The  C.  D.  Co.,  each  holding  stock  therein  of  the  amount  and 
number  of  shares  set  against  their  respective  names : 

T.   A.,   of  L.,   county  of  M.,   holder  of  shares,   par 

value  $ . 

E.    B.,   of   B.,   county  of   S.,   holder   of  shares,   par 

value  $ . 

Etc.,  etc. 

A\'herefore  the  plaintiffs,  in  behalf  of  themselves  and  the 
aforesaid  other  creditors  of  the  said  The  C.  D.  Co.,  bring  the 
foregoing  bill  against  said  The  C.  D.  Co.,  and  the  aforesaid 
stockholders  therein,  and  pray  that  the  aforesaid  stockholders 
may  be  ordered  and  decreed  to  pay  to  the  plaintiffs  the 
amount  due  them  as  aforesaid,  as  fixed  and  determined  by 
the  judgment  aforesaid,"  with  interest  from  the  date  of  said 
judgment,  and  to  pay  such  other  creditors  of  the  said  cor- 
poration as  may  become  parties  to  this  bill  such  sums  as  may 
be  found  due  to  such  creditors;  and  that  the  amount  of  the 
debt  due  as  aforesaid  to  the  plaintiffs  from  said  The  C.  D, 
Co.,  and  such  as  may  be  found  due  to  such  other  creditors  as 
may  become  parties  hereto,  may  be  assessed  upon  said  stock- 
holders as  law  and  equity  may  require. 

And  that  the  plaintiffs  may  have  such  orders,  decrees  and 
process  as  may  be  necessary  to  enforce  the  payment  of  such 
sums  as  may  be  assessed  upon  said  stockholders,  and  may 
have   such   further   and   other  relief  in   the   premises   as  the 


548  SUITS    IN    EQUITY. 

nature   and  circumstances   of  the   case   require,   and   as   shall 
seem  meet  unto  this  honorable  court. 

X.  &  X.,  A.  B. 

Solicitors  and  of  Counsel.  C.  B. 

[Veri^cafion.] 

(1)   Essex  Company  v.  Lawrence  Machine  Shop,  10  Allen  352. 


No.  436. 

Bill  to  Enforce  Statutory  Liability  of  a  Stockholder  Against 
Real  Estate  in  a  Foreign  Jurisdiction.  (1) 

[Caption.] 

To  the  Honorable  Judges  of  the  Circuit  Court  of  the  United 
States,  in  and  for  the District  of . 

Plaintiff,  J.   R.,   humbly    complaining,    shows    unto    your 

honors  that  he  is  a  citizen  and  resident  of  the  state  of  

and  that  M.  K.,  H.  K.,  I.  K.  and  M.  K.,  administratrix  of 
the  estate  of  J.  K.,  deceased,  whom  plaintiff  prays  may  be 
made  defendants  to  this  his  bill  of  complaint,  are  each  of 
them  citizens  and  residents  of  the  state  and  district  of  . 

He  further  says  that  in  a  certain  suit  of  A.  B.,  plaintiff, 

against  the  Commercial  Bank  of  ,  a  corporation  created 

and  existing  under  the  constitution  and  laws  of  the  state  of 

,   and  others,   defendants,   then  pending  in  the  court  of 

common  pleas  of  county,  in  the  said  state  of  ,  he 

was,  on  the day  of ,  by  the  order  and  decree  of  said 

court,  duly  appointed  and  qualified  receiver,  with  authority 
and  direction  to  receive  from  the  stockholders  of  the  said 
Commercial  Bank  of ,  the  amount  of  individual  or  statu- 
tory liability  from  said  stockholders,  respectively,  by  reason 
of  the  insolvency  of  said  bank. 

Plaintiff  further  shows  that  the  said  J.   M.,  then  and   for 

many  years  prior  to  the day  of ,  was  a  citizen  and 

resident  of county,  state  of ,  and  that  upon  the  date 

last  above  set  out  the  said  J.  K.  departed  this  life,  intestate, 


BILLS   IN    SPECIAL    CASES.  549 

leaving  surviving  him  the  said  M.  K.,  his  widow,  and  said 
H.  K.  and  I.  K.,  his  only  children  and  heirs-at-law ;  that  the 
said  I.  K.  is  a  minor,  without  a  statutory  guardian,  the  other 
said  children  each  being  of  the  full  age  of  twenty-one  years. 

That  upon  the day  of ,  the  said  M.  K.  and  H.  K. 

were  appointed  administrators  of  the  estate  of  the  said  J.  K., 

deceased,  by  order  of  the  county  court  of county,  , 

and  thereupon  qualified  as  such,  and  undertook  the  adminis- 
tration of  said  estate. 

That  the  said  Commercial  Bank  is  a  corporation  as  afore- 
said, organized  under  the  laws  of  the  said  state  of ,  for 

the  purpose  of  conducting  a  general  banking  business  in  the 

city  of  ,   in  said  state,   in  which  said  business  the  said 

bank  was  engaged  under  and  by  virtue  of  its  charter  and  or- 
ganization as  aforesaid,  until  the  day  of  ,  in  the 

year  ,  w'hen  it  was  discovered  by  its  directors  to  be  in- 
solvent, and  as  by  the  constitution  and  laws  of  the  state  of 
,  it  might  lawfully  be  done,  it  was  by  its  directors  de- 
clared to  be  insolvent  and  unable  to  pay  its  debts  and  liabili- 
ties; and  thereupon  it  made  a  general  assignment  of  all  of  its 
property  and  assets  for  the  benefit  of  its  creditors,  which  as- 
signment  has  been   duly   administered   under   the   insolvency 

laws  of  the  said  state  of .    That  the  said  assigned  assets 

of  said  bank  have  been  converted  by  the  assignee  thereof  into 
money,  and  applied  under  the  judgments  and  orders  of  said 
insolvency  court  towards  the  payment  of  the  claims  of  credit- 
ors of  said  bank;  but  the  said  assets  so  converted  and  applied 
were  wholly  insufficient  for  the  payment  of  the  indebtedness 
of  said  bank,  and  it  became  and  was  necessary  to  levy  an 
assessment  upon  the  stockholders  of  said  bank,  as  authorized 
under  and  by  virtue  of  the  constitution  and  laws  of  the  state 
of ,  to  pay  the  remaining  indebtedness,  and  for  that  pur- 
pose an  action  was  commenced  and  prosecuted  in  the  court  of 

common  pleas  of county, ,  in  the  name  of  A.  B,,  on 

behalf  of  himself  and  other  creditors,  against  the  said  bank 
and  all  the  stockholders   within  the  jurisdiction  of  the  said 


550  SUITS    IX    EQUITY. 

court,  upon  whom  the  process  of  the  said  court  was  duly 
served ;  and  thereupon  it  was  on  the  day  of ascer- 
tained and  decreed  by  said  court,  after  a  full  hearing,  that  it 
was  necessary  to  levy  an  assessment  upon  the  said  stock- 
holders for  the  full  amount  of  the  par  value  of  all  shares  held 
by  said  stockholders  respectively,  and  judgment  was  rendered 
by  said  court  against  all  the  holders  of  stock  in  said  bank  for 
an  assessment  upon  them  respectively  of  an  amount  equal  to 
the  par  value  of  the  stock  held  by  each,  with  interest  thereon 

from  the day  of ;  and  nearly  all  of  said  assessments 

have  been  paid  to  this  complainant;  and  the  fund  so  realized 
has  been  applied  towards  the  payment  of  the  indebtedness 
aforesaid  of  said  bank. 

That  by  reason  of  the  aforesaid  deficiency  of  the  assets  of 
the  said  bank  for  the  payment  of  the  debts  thereof,  it  was  and 
is  necessary  to  levy  an  assessment  upon  the  stockholders  for 
the  full  amount  of  the  par  value  of  their  stock  in  said  bank, 
in  order  to  pay  its  said  indebtedness  as  aforesaid. 

That  plaintiff  was  likewise  by  said  court  of  common  pleas 
in  said  cause  above  referred  to,  duly  authorized  to  commence 
and  prosecute  all  suit,  actions  and  legal  proceedings  necessary 
to  collect  the  amounts  of  liability  due  from  the  stockholders 
as  aforesaid,  and  is  still  acting  under  and  by  virtue  of  his  said 
appointment  and  qualification  and  under  said  authority  and 
orders  brings  this  action.  He  files  as  part  hereof,  certified 
copies  of  the  orders  and  decrees  of  the  said  courts  of  common 
pleas  and  insolvency,  made  in  that  behalf  as  aforesaid,  and 
prays  that  the  same  may  be  read  and  considered  as  evidence 
on  his  part  upon  the  trial  of  this  cause. 

That  at  the  time  of  the  failure  and  occurrence  of  the  insol- 
vency of  said  bank,  its  total  indebtedness  amounted  to  the 
sum  of  $632,774.45,  while  its  total  assets  were  not  sufficient 
to  pay  more  than  one-half  of  the  said  indebtedness;  and  that 
the  total  number  of  shares  of  the  capital  stock  of  said  cor- 
poration at  the  time  of  its  said  failure  consisted  of  6,560  of 
the  par  value  of  fifty  dollars  per  share,  representing  in  money 


BILLS    IX    SPECIAL    CASES.  551 

$328,000.  Of  these,  1,095  shares  were  held  by  persons  who 
were  and  are  still  insolvent,  leaving  solvent  holders  of  5,465 
shares  subject  to  assessment,  and  representing  an  aggregate 
in  money  of  $273,206;  wherefore  it  became  and  is  a  fact  that 
if  the  total  assessment  of  the  full  value  of  the  stock  be  col- 
lected from  each  one  of  the  solvent  stockholders,  there  will 
not  be  a  sufficient  amount  received  to  pay  the  remaining  un- 
paid indebtedness  of  said  bank. 

That  at  the  time  of  the  occurrence  of  the  insolvency  and 
the  failure  of  said  bank,  the  said  J.  AL,  now  deceased,  was 
the  owner  and  holder  of  120  shares  of  the  capital  stock  of 
said  bank  of  the  par  value  of  $6,000,  evidenced  by  certificates 
thereof,  duly  issued  by  said  bank,  and  then  in  his  possession, 
which  had  been  transferred  to  him  on  the  stock  book  of  said 
bank,  upon  which  he  was  liable  to  assessment  for  the  full 
value  thereof,  and  his  personal  representative  and  his  estate 
is  now  in  like  manner  liable*  under  the  constitution  and  laws 
of  the  said  state  of . 

That  though  the  said  M.  K.  has,  as  stated,  on  the day 

of  ,  together  with  the  said  H.  K.,  been  appointed  and 

qualified  in  the  county,  court,  at  ,  and  as- 
sumed the  duties  of  administratrix  and  administrator  of  the 
estate  of  the  said  J.  K.,  deceased,  and  executed  bond  as  such 

with  M.  K.  and  G.  K.  their  sureties ;  and  on  the day  of 

,  the  said  administratrix  and  administrator  filed  a  writ- 
ing in  said  court,  purporting  to  be  a  settlement  of  their  ac- 
counts of  their  said  administration,  and  the  said  H.  K.  ten- 
dered his  resignation  of  his  said  office  of  administrator,  which 
was  accepted  by  the  court,  and  the  said  M.  K.  was  continued 
by  the  order  of  the  said  court,  and  assumed  the  sole  adminis- 
tration of  the  said  estate,  and  is  still  so  acting. 

That,  though  the  above  stated  purported  settlement  of  said 
administration  accounts  of  said  estate  were  filed  as  aforesaid, 

and  on  the day  of ,  confirmed  as  such,  yet  the  said 

settlement  does  not  show,  nor  have  said  administrators  filed, 
as  by  law  they  were  required  to  do  in  said  court,  any  inven- 


552  SUITS    IN    EQUITY. 

tory  of  the  personal  estate  of  the  said  decedent,  nor  has  plain- 
tiff any  knowledge  of  what  it  consists,  its  nature  or  value; 
there  is  no  information  in  relation  thereto  upon  the  records 
of  said  court,  except  that  the  purported  settlement  recites  that 
all  the  personal  estate  of  the  decedent  which  came  to  the 
hands  of  said  administrator  and  administratrix  has  been 
turned  over  to  the  latter,  and  was  then  said  to  be  in  her 
possession. 

That  on  or  about  the  day  of ,  he  having-  made 

proof  by  his  own  affidavit  in  due  form  of  law,  as  required  by 

the  state  of  ,  as  well  as  by  the  affidavit  of  H.  D.,  his 

attorney,  a  legally  competent  witness,  who  has  knowledge  of 
the  correctness  of  said  claim  of  indebtedness  of  the  estate  of 
said  decedent,  J.  K.,  as  hereinbefore  set  forth,  presented  the 
same  to  M.  K.,  administratrix  of  the  said  decedent,  and  de- 
manded payment  thereof  from  her,  but  the  same  was  not 
paid,  and  still  remains  unpaid,  no  part  thereof  having  at  any 
time  been  paid.  A  copy  of  said  proof  and  bill  of  the  particu- 
lars thereof  is  filed  herewith,  which  he  prays  may  be  taken 
and  read  as  evidence  on  his  behalf  in  support  of  said  claim 
upon  the  hearing  hereof. 

Plaintiff  makes  certified  copies  of  the  orders  of  the  said 
county  court  appointing  and  qualifying  said  adminis- 
tratrix, and  all  others  made  by  said  court  in  relation  thereto. 

Plaintiff  prays  that  the  said  administratrix  be  required  to 
account  for  said  personal  estate,  and  to  show  what  disposi- 
tion has  been  made  of  it. 

Plaintiff  further  says  that  said  J.  K.,  at  the  time  of  his 
death,  was  the  owner  of  and  seized  in  fee  of  the  title  to  the 
following  described  real  estate,  to-wit,  those  parcels  of  land 

situated  in  the  county  of  ,  state  of  ,  in  the  city  of 

,  bounded  as  follows:     [Describe  the  property.] 

A  copy  of  said  deed,  duly  certified,  is  filed  as  part  hereof, 
marked  "B." 

Plaintiff  further  alleges  and  charges  that  the  personal  prop- 
erty left  by  the  said  J.  K.,  deceased,  was  and  is  not  sufficient 


BILLS    IN    SPECIAL    CASES.  553 

in  value  to  pay  the  debts  of  the  decedent,  and  it  therefore  be- 
comes necessary  to  sell  so  much  of  said  real  estate  as  will 
suffice  to  pay  said  debt  to  plaintiff,  as  receiver  as  afore- 
said; and  he  prays  that  the  amount  of  said  personal  estate 
now  in  possession  of  the  said  administratrix  be  applied  to  the 
payment  of  the  amount  owing  to  him  as  receiver  as  aforesaid 
of  said  bank,  from  the  personal  estate  of  the  decedent ;  and  in 
case  the  same  shall  not  be  sufficient,  the  balance  of  said  in- 
debtedness may  be  paid  by  a  sale  of  a  sufficiency  of  said  real- 
estate. 

Plaintiff  is  not  advised  that  any  of  the  said  heirs  of  dece- 
dent are  possessed  of  any  estate,  real  or  personal,  except  that 
which  is  left  to  them  by  their  father,  the  said  J.  K. 

Plaintiff  further  shows  unto  your  honors  that  the  said 
conveyance  of  said  real  estate  by  the  said  children  of  the 
decedent,  J.  K.,  to  their  mother,  the  said  M.  K.,  adminis- 
tratrix as  aforesaid,  not  having  been  made  for  a  valuable 
consideration  paid  by  their  mother  to  them,  and  no  valuable 
consideration  therefor  having  been  received  by  said  grantors, 
the  said  conveyance  is  fraudulent  as  against  the  creditors  of 
the  said  J.  K.,  and  especially  as  to  the  complainant  herein 
suing  in  his  character  as  receiver  as  aforesaid,  of  the  assets 
of  the  said  Commercial  Bank,  and  owing  to  the  said  fraud, 
the  title  to  the  said  real  estate  has  not  passed  from  the  said 
children  or  become  vested  in  the  said  grantee,  the  said  M.  K. 

Plaintiff   avers    that   under   the   law   of  ,    where   said 

real  estate  is  situated,  and  where  the  said  J.  K.  resided  at  the 
time  of  his  death,  and  for  many  years  theretofore,  and  where 
his  wife  and  children  resided  with  him,  and  have  continued 
to  reside  in  said  state  since  his  death,  the  said  conveyance  to 
M.  K.  is  fraudulent  and  void  as  to  creditors. 

Plaintiff  further  avers  that  the  interest  or  share  of  the  said 
I.  K.,  the  minor  daughter  of  the  said  J.  M.,  remains  intact, 
and  the  title  by  descent  to  her  remains  undivested  by  her,  and 
is  subject  to  the  claim  of  plaintiff,  as  in  this  bill  set  forth. 


554  SUITS    IN"    EQUITY, 

Plaintiff  pleads  and  relies  upon  the  statute  passed  by  the 

general  assembly  of  ,  and  approved  on  the  day  of 

,   and   upon   the    fraud   committed   by    the   said   children 

against  him  as  a  creditor  of  said  J.  K.,  in  the  attempted  con- 
veyance of  the  said  real  estate  by  said  H.  K.  and  M.  K.,  and 
he  prays  that  a  sufficiency  of  said  real  estate,  after  exhaust- 
ing the  personalty  in  the  hands  of  the  administratrix,  if  any, 
may  be  by  your  honors  decreed  to  be  sold  for  the  payment  of 
said  indebtedness  of  the  intestate,  as  hereinbefore  set  forth. 

Plaintiff  does  not  know  of  any  other  debts  owing  by  the 
decedent  at  his  death  and  now  unpaid. 

Wherefore  plaintiff  says  that  the  said  M.  K.,  as  widow  of 
the  decedent,  will  have  a  claim  as  doweress  upon  the  real 
estate  of  said  decedent,  and  also  a  claim  for  homestead  there- 
in, of  $1,000  in  value;  but  she  may  not  claim  both  dower  and 
homestead  in  said  estate. 

If  dower  is  claimed  by  her,  and  is  decreed  to  her,  and  is  of 
greater  value  than  $1,000,  the  excess  above  that  value  shouhl 
be  deducted  from  the  allowance  to  said  widow. 

Plaintiff  prays  that  M.  K.  may  be  made  a  party  defendant 
herein,  in  her  individual  right  as  well  as  administratrix  of 
the  said  decedent,  and  that  she  be  required  to  answer  in  rela- 
tion thereto. 

Wherefore  plaintiff  prays  that  he  may  have  the  process  of 
the  court,  a  subpoena  in  chancery  issued  to  him  against  the 
said  M.  K.,  administratrix  of  said  J.  K.,  deceased,  and  in  her 
individual  right  as  aforesaid,  and  H.  K.,  M.  K.  and  I.  K., 
the  last  named  being  a  minor  and  without  a  statutory 
guardian. 

And  plaintiff  prays  that  the  said  defendants  may  be  re- 
quired to  answer  this,  his  bill  of  complaint,  and  upon  final 
hearing  he  may  have  such  decree  for  proper  relief  as  the 
nature  of  the  case  may  require,  and  defendants,  the  adminis- 
tratrix and  heirs  of  the  decedent,  may  be  required  to  pay  the 
necessary  assessment  upon  tlie  capital  stock  in  said  bank, 
(Avned  by  the  intestate  in  said  Commercial  Bank  of  ,  as 


BILLS   IX    SPECIAL    CASES.  555 

in  this  bill  set  out;  that  the  assets  of  the  estate  of  said  J.  K. 
be  applied  to  the  payment  of  the  same  so  far  as  necessary; 
that  the  court  proceed  to  administer  said  estate,  if  necessary, 
to  secure  the  payment  of  said  claim ;  and  that  he  may  have 
all  and  every  manner  of  equitable  relief  as  the  nature  of  his 
case  demands.  X.  &  X., 

Solicitors  for  Complainant. 

State  of ,  County  of ,  ss. : 

J.  R.,  being  first  duly  sworn,  says  that  he  is  the  complain- 
ant in  the  foregoing  bill,  and  that  the  statements  and  allega- 
tions therein  contained  are  true,  except  such  as  are  stated 
upon  information  and  belief,  which  latter  affiant  believes  to 
be  true.  J.  R. 

Sworn  to  before  me   and   subscribed   in  my  presence  this 

day  of ,  A.  D. .  J.  H., 

Notary  Public, 
County,  . 

(1)  Taken  from  the  record  in  Kirtley  v.  Holmes,  46  C.  C.  A.  102,  107 
Fed.  1.  See  also  Burr  v.  Smith,  113  Fed.  858;  Ins.  Co.  v.  Schulty,  25 
C.  C.  A.  453,  80  Fed.  337;  Hale  v.  Harden,  Z1  C.  C.  A.  240,  95  Fed.  747, 
as  to  jurisdiction  to  entertain  such  suits. 


No.  437. 

For  a  Dissolution  of  a  Partnership. 

[Caption   and   introdnction.li 

That  in  or  about  the  month  of  ,  plaintiff  entered  into 

an  agreement  with  C.  D.,  of,  etc.,  and  E.  F.,  of,  etc.,  the  de- 
fendants hereinafter  named,  to  form  a  partnership  with  them, 
in  the  business  of  auctioneers,  which  agreement  was  reduced 
to  writing,  and  signed  by  plaintiff  and  the  said  defendants, 
and  was  in  the  words  and  figures,  or  to  the  purport  and 
effect,  following;  that  is  to  say  [stating  the  same],  as  in  and 
by  the  said  agreement,  reference  being  thereunto  had,  will 
appear. 


556  SUITS    IN    EQUITY. 

And  plaintiff  shows  that  the  said  co-partnership  business 
was  entered  upon  and  has  ever  since  continued  to  be  carried 
on  by  plaintiff  and  the  said  defendants,  in  pursuance  of  and 
under  the  aforesaid  agreement,  no  articles  or  other  instru- 
ment having-  ever  been  prepared  and  executed  between  them. 

That  having  much  reason  to  be  dissatisfied  with  the  con- 
duct of  the  said  C.  D.,  and  being  desirous  therefore  to  dis- 
solve the  said  partnership,  plaintiff,  on  or  about ,  caused 

a  notice  in  writing,  signed  by  himself,  to  be  delivered  to  the 
said  C.  D.  and  E.  F.,  in  the  words  and  figures  of  the  purport 
and  effect  following,  that  is  to  say :  "In  conformity,"  etc.,  etc. ; 
as  in  and  by  such  written  notice  now  in  the  custody  or  power 
of  the  said  defendants,  or  one  of  them,  when  produced,  will 
appear. 

That  the  said  C.  D.  has,  from  time  to  time  since  the  com- 
mencement of  the  said  partnership,  applied  to  his  own  use, 
from  the  receipts  and  profits  of  the  said  business,  very  large 
sums  of  money,  greatly  exceeding  the  proportion  thereof  to 
which  he  was  entitled,  and  in  order  to  conceal  the  same  the 
said  C.  D.,  who  has  always  had  the  management  of  the  said 
co-partnership  books,  has  never  once  balanced  the  said  books. 

That  having,  in  the  beginning  of  the  year ,  discovered 

that  the  said  C.  D.  was  greatly  indebted  to  the  said  co- 
partnership, by  reason  of  his  application  of  the  partnership 
moneys  to  his  own  use,  plaintiff,  in  order  to  form  some  check 
upon  the  conduct  of  the  said  C.  D.,  requested  that  he  would 
pay  all  co-partnership  moneys  which  he  received  into  their 
bankers,  and  would  draw  for  such  sums  as  he  had  occasion 
for,  but  the  said  C.  D.  has  wholly  disregarded  such  request, 
and  has  continued  to  apply  the  partnership  moneys  received 
by  him  to  his  own  use,  without  paying  the  same  into  the 
bankers,  and  has  also  taken  to  his  own  use  moneys  received 
by  the  clerks,  and  has  by  such  means  greatly  increased  his 
'debt  to  the  partnership,  without  affording  to  plaintiff  and  the 
said  E.  F.  any  adequate  means  of  ascertaining  the  true  state 
of  his  accounts. 


BILLS    IX    SPECIAL    CASES.  557 

Ihat,  by  himself  and  his  agents,  from  time  to  time,  plaintiff 
has  applied  to  the  said  C,  D.,  and  has  requested  him  to  come 
to  a  full  and  fair  account  in  respect  of  the  said  co-partnership 
transactions,  with  which  just  and  reasonable  requests  plaintiff 
well  hoped  that  the  said  defendant  would  have  complied,  as 
in  justice  and  equity  he  ought  to  have  done.  But  said  de- 
fendant, C.  D.,  absolutely  refuses  so  to  do,  and  he  at  times 
pretends  that  he  has  not  received  and  applied  to  his  own  use 
more  than  his  due  proportion  of  the  partnership  profits.  Where- 
as plaintiff  charges  to  the  contrary  thereof  to  be  the  truth,  and 
so  it  would  appear  if  the  said  defendant  would  set  forth  a 
full  and  true  account  of  all  and  every  his  receipts  and  pay- 
ments, in  respect  of  the  said  partnership  transactions,  and  of 
the  gains  and  profits  which  have  been  made  in  each  year  since 
the  commencement  of  the  said  partnership. 

Plaintiff  charges  that  the  said  C.  D.  has  in  fact  received 

the  sum  of  (1)    dollars,  and  upwards,  beyond  his   due 

proportion  of  the  partnership  profits,  and  that  he  is  never- 
theless proceeding  to  collect  in  the  partnership  debts  and 
moneys,  whereby  the  balance  due  from  him  will  be  increased, 
to  the  great  loss  and  injury  of  plaintiff  and  the  said  E.  F. 
And  plaintiff  charges  that  the  said  C.  D.  ought  therefore  to 
be  restrained  by  the  order  and  injunction  of  this  honorable 
court  from  collecting  and  receiving  any  of  the  said  partner- 
ship debts  and  moneys ;  and  plaintiff  further  charges  that  the 
said  E.  F.  refuses  to  join  in  this  suit. 

Plaintiff  prays  that  the  said  defendants  may  answer  the 
premises;  that  the  said  co-partnership  may  be  declared  void, 
and  that  an  account  may  be  taken  of  all  and  every  the  said 
co-partnership  dealings  and  transactions  from  the  time  of  the 
commencement  thereof;  and  also  an i account  of  the  moneys 
received  and  paid  by  plaintiff  and  the  said  defendants  respec- 
tively in  regard  thereto;  and  that  the  said  defendants  may  be 
decreed  to  pay  to  plaintiff  what,  if  anything,  shall,  upon  the 
taking  of  the  said  accounts,  appear  to  be  due  to  him,  plaintiff 
being  ready  and  willing,  and  hereby  offering,  to  pay  to  the 


558  SUITS    IN    EQUITY. 

said  defendants,  or  either  of  them,  what,  if  anything,  shall, 
upon  the  taking  of  the  said  accounts,  appear  to  be  due  to 
them,  or  either  of  them,  from  plaintiff;  and  that  in  the  mean- 
time the  said  defendant.  C.  D.,  may  be  restrained  by  the  order 
and  injunction  of  this  honorable  court  from  collecting  or 
receiving  the  partnership  debts  or  other  moneys.  [And  for 
further  relief,  etc.,  and  for  injunction  against  C.  Z).] 

(1)  Must  exceed  $3,000.00,  exclusive  of  interest  and  costs;  see  Judicial 
Code,  Sec.  24. 


No.  438. 

For  an  Account  of  Partnership  Dealings  after  a  Dissolution, 
and  for  a  Receiver.  (1) 

[Caption  and  introduction.'] 

That  on  or  about ,  plaintiff,  A.  B.,  and  C.  D.,  of,  etc., 

the  defendant  hereinafter  named,  entered  into  co-partnership 
together   as    attorneys    and    solicitors,    plaintiff   engaging   to 

bring  into  the  business  the  sum  of dollars,  and  being  to 

receive  one-third  part  or  share  of  the  profits;  and  the  said 

C.  D.  engaging  to  bring  into  the  business  the  sum  of  

dollars,  and  being  to  receive  two-third  parts  or  shares  of  the 
said  profits. 

Plaintiff  accordingly  brought  into  the  business  the  said  sum 

of  dollars,  and  the  said  co-partnership  was  carried  on 

and  continued  until  the  day  of  ,  when  the  same 

was  dissolved  by  mutual  consent,  and  the  usual  advertisement 
of  such  dissolution  was  inserted  in  the  ,  a  paper  pub- 
lished at ,  once  a  week  for  the  period  of weeks. 

The  said  co-partnership  business  was  carried  on  in  an  office 

building  known  as  No.  ,  street,  which  building,  at 

the  time  of  the  dissolution  of  the  said  co-partnership,  was 
held  by  the  said  defendant  and  plaintiff  under  an  agreement 

for  a  lease  for  years  from  ,  and   it  was  verbally 

agreed  between  the  said  defendant  and  plaintiff  that  the  said 
defendant  should  take  to  himself  the  benefit  of  the  said  agree- 


BILLS   IN    SPECIAL    CASES.  559 

ment,  accounting  to  plaintiff  for  his  proportion  of  the  value 
thereof,  and  in  pursuance  of  such  agreement  the  said  defend- 
ant has  ever  since  continued,  and  now  is-  in  possession  of  the 
said  house  or  building. 

No  settlement  of  the  said  co-partnership  accounts  has  ever 
been  made,  and  since  the  said  dissolution  plaintiff  has  repeat- 
edly applied  to  the  said  defendant  to  come  to  a  final  settle- 
ment with  respect  thereto.  And  plaintiff  well  hoped  that  the 
said  defendant  would  have  complied  with  such  reasonable 
request,  as  in  justice  and  equity  he  ought  to  have  done.  But 
now  the  said  defendant  absolutely  refuses  so  to  do.  And 
plaintiff  charges  that  the  said  defendant  has  possessed  himself 
of  the  said  co-partnership  books,  and  has  refused  to  permit 
plaintiff  to  inspect  the  same,  and  has  also  refused  to  render 
to  plaintiff  any  account  of  the  co-partnership  moneys  received 
by  him.  And  plaintiff  charges  that  he  has,  since  the  said  dis- 
solution, paid  the  sum  of  dollars  in  respect  to  the  co- 
partnership debts. 

And  plaintiff  further  charges  that  upon  a  true  and  just 
settlement  of  said  accounts  it  would  appear  that  a  consider- 
able balance  is  due  from  the  said  defendant  to  plaintiff  in 
respect  of  their  said  co-partnership  dealings,  which  said  sum 
or  balance  is  at  least  the  sum  of  dollars;  but  neverthe- 
less the  said  defendant  is  proceeding  to  collect  in  the  said  co- 
partnership debts,  and  to  apply  the  same  to  his  own  use, 
which  the  said  defendant  is  enabled  to  do  by  means  of  his 
possession  of  the  books  of  account  as  aforesaid.  And  plain- 
tiff charges  that  the  said  defendant  ought  to  be  restrained  by 
the  injunction  of  this  honorable  court  from  collecting  in  the 
said  debts,  and  that  some  proper  person  ought  to  be  appointed 
by  this  honorable  court  for  that  purpose. 

Plaintiff  prays  that  an  account  may  be  taken  of  all  and 
every  the  said  late  co-partnership  dealings  and  transactions 
until  the  time  of  the  expiration  thereof;  and  that  the  said 
C.  D.  may  be  directed  to  pay  to  plaintiff  what,  if  anything, 
shall  upon  such  account  appear  to  be  due  from  him,  plaintiff 


560  SUITS    IN    EQUITY. 

being  ready  and  willing,  and  hereby  offering,  to  pay  to  the 
said  C.  D.  what,  if  anything,  shall  appear  to  be  due  to  him 
from  the  said  joint  concern.  And  that  some  proper  person 
may  be  appointed  to  receive  and  collect  all  moneys  which  may 
be  coming  to  the  credit  of  the  said  late  co-partnership.  And 
that  the  said  C.  D.  may  in  the  meantime  be  restrained  by  the 
order  and  injunction  of  this  honorable  court  from  collecting 
or  receiving  any  of  the  debts  due  and  owing  thereto.  [And 
for  further  relief.] 

(V)  Equity  has  practically  exclusive  jurisdiction  in  proceedings  for 
an  account  and  settlement  of  partnership  affairs,  including  suits  for 
an  account  and  settlement  between  the  partners  themselves,  suits  for  a 
settlement  of  firm  affairs  between  the  survivors  and  the  personal  repre- 
sentatives of  a  deceased  partner,  and  suits  to  settle  the  affairs  of  an  insol- 
vent firm,  and  to  adjust  the  demands  of  a  firm's  creditors,  and  the  creditors 
of  the  individual  partner.  The  equitable  jurisdiction  over  partnerships 
is  a  necessary  outgrowth  of  the  jurisdiction  over  accounting,  and  the 
remedies  of  dissolution,  injunction,  and  receivership  are  incidents  necessary 
to  a  final  and  complete  rehef.  Pom.  Eq.  Jur.,  Sec.  1421.  Equity  has 
jurisdiction  of  matters  of  account  where  the  parties  stand  in  a  fiduciary 
relation  to  each  other,  and  the  account  is  so  complicated  that  it  can  not 
be  conveniently  taken  in  a  court  of  law.  Pacific  R.  R.  of  Mo.  v.  Atlantic 
&  Pacific  R.  R.  Co.,  20  Fed.  277.  Thus  complicated  accounts  preliminary 
to  a  distribution  of  assets  or  division  of  profits  are  of  equity  cognizance. 
John  Crossley  Sons  v.  New  Orleans,  20  Fed.  352.  Jurisdiction  is  conferred 
upon  federal  courts  in  such  case  under  the  conditions  included  in  Sec.  24 
of  the  Judicial  Code. 


No.  439. 

Foreclosure  of  Mortgage.  (1) 

[Caption  and  introduction."] 

That  heretofore,  to-wit,  on  the  day  of  ,  in  the 

year  ,   the  said   C.    D.,   defendant,   being   indebted   unto 

plaintiff  in  the  sum  of  (2),  current  money,  and  intend- 
ing to  secure  the  payment  thereof  unto  him,  did,  by  his  deed 
of  that  date,  convey  unto  plaintiff  and  his  heirs  certain  real 
estate  lying  in  said  county,  and  particularly  described  in  said 
deed,  to  which  said  deed  there  is  a  condition  annexed  that  it 
be  void  on  payment  by  said to  plaintiff  of  the  aforesaid 


BILLS    IN    SPECIAL    CASES.  561 

sum  of  money,  with  interest  thereon  from ,  on  or  before 

the day  of ,  in  the  year ,  as  by  a  copy  of  said 

deed   filed   herewith   as   a   part   of  this  bill   will  more   fully 
appear. 

And  plaintiff  charges  that  no  part  of  the  aforesaid  sum  of 
money,  or  the  interest  accruing  thereon,  has  been  paid,  but 
the  same  is  still  owing  to  him,  although  the  time  limited  for 
the  payment  thereof  by  the  condition  aforesaid  has  passed, 
and  payment  thereof  has  been  duly  demanded  of  the  said 
(3). 

W'herefore  plaintiff  prays  that  the  premises  aforesaid,  or 
so  much  thereof  as  may  be  necessary,  may  be  sold  for  pay- 
ment of  his  claim,  with  interest  as  aforesaid,  and  that  he  may 
have  such  further  or  other  relief  as  his  case  may  require. 

R.  X., 
Solicitor  for  Plaintiff. 

And    plaintiff    admits    that    the    interest,    which    accrued 

prior  to  and  on  the  ,  has  been  paid  to  him  by  the  said 

;  and  he  also  admits  the  receipt  of  the  further  sum  of 

-,  which  was  paid  to  him  on  the for  further  interest. 


and  in  part  of  the  principal  debt  secured  by  said  mortgage. 
But  he  insists  that  the  residue  of  said  debt,  with  interest 
accrued  thereon  since  the  last-mentioned  day,  is  still  due  and 
owing  to  him. 

[Or  as  follozcs:'] 

And  plaintiff  admits  that  sundry  payments  have  been  made 

to  him  by  the  said  ,  on  account  of  said  mortgage,  as  is 

more  particularly  admitted  in  the  statement  marked  Exhibit 
B,  and  filed  as  part  of  this  bill ;  but  by  said  statement  it  ap- 
pears, and  so  he  insists,  there  is  yet  due  to  him  on  said  mort- 
gage  a  balance   of  ,   besides   interest   thereon   from  the 

day  of . 

(1)  Equity  deals  primarily  and  almost  exclusively  with  the  mortgagee. 
His  interest  in  the  mortgage  is  no  longer  an  estate  but  a  mere  lien,  an 
appendage  of  the  debt:  personal  assets;  a  thing  in  action  as  signable 
with  the  debt  but  incapable  of  being  separated  from  the  debt  and  trans- 


562  SUITS    IN    EQUITY. 

ferred  by  itself.  He  has  no  legal  remedy  on  the  mortgage,  and  can 
enforce  the  lien  against  the  land  only  in  equity,  as  this  is  the  primary 
object  of  a  foreclosure  suit,  which  does  not  vest  the  title  in  the  mortgagee, 
although  it  extinguishes  that  of  the  mortgagor  by  transferring  it  to  the 
purchaser  at  the  judicial  sale.  Pom.  Eq.  Jur.,  Sec.  1190.  Milf.  &  Tyl.  PI.  & 
Pr.,  p.  511. 

(2)  Must  exceed  $3,000  to  give  district  court  jurisdiction.  Sec.  24, 
Judicial  Code. 

(3)  If  payments  have  been  made  on  account,  they  should  be  admitted 
in  the  bill,  either  specially  or  by  referring  to  some  statement  or  account 
accompanying  the  bill  as  in  the  following  forms. 


No.  440. 

Bill  to  Foreclose  a  Railway  Mortgage. 

[Caption.] 

To  the  Honorable  Judge  of  the  District  Court  of  the  United 
States  for  the  District  of  Kansas,  sitting  in  Equity: 

The  Mercantile  Trust  Company,  a  corporation  created  by 
and  existing  under  the  laws  of  the  state  of  New  York,  brings 
this  its  bill  of  complaint  against  the  Missouri,  Kansas  and 
Texas  Railway  Company,  a  corporation  created  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of  Kansas,  and 
the  Missouri  Pacific  Railway  Company,  a  corporation  exist- 
ing under  the  laws  of  said  state  and  of  the  state  of  Missouri, 
as  hereinafter  set  forth. 

Plaintiff  says  that  the  Mercantile  Trust  Company  is  a  cor- 
poration created  by  and  existing  under  the  laws  of  the  state 
of  New  York,  and  having  its  principal  office  for  the  trans- 
action of  its  business  in  the  city  of  New  York  in  said  state 
of  New  York,  and  is  a  citizen  of  said  state  of  New  York. 

On  and  prior  to  the  1st  day  of  December,  1880,  there 
existed  a  railroad  corporation  known  as  the  Missouri,  Kansas 
&  Texas  Railway  Company,  which  was  created  a  body  cor- 
porate by  the  consolidation,  amalgamation  and  purchase  of 
the  property  and  franchises  of  certain  other  corporations, 
created  by  and  existing  under  and  by  virtue  of  the  laws  of 
the  states  of  Kansas  and  Missouri,  and  possessed  of  and  en- 


BILLS    IN    SPECIAL    CASES.  563 

dowed  with  powers,  rights,  privileges,  franchises  and  im- 
munities granted  by  the  laws  of  said  states,  and  also  by  cer- 
tain acts  of  the  Congress  of  the  United  States,  and  acts  of 
the  legislature  of  the  state  of  Texas.  That  said  Missouri, 
Kansas  &  Texas  Railway  Company  owned  and  operated  a 
number  of  lines  of  railway  situate  in  the  states  of  Missouri, 
Kansas  and  Texas,  and  in  the  Indian  Territory,  with  branches 
extending  in  various  directions  within  such  states  and  terri- 
tory, and  then  had  and  still  has  its  principal  office  for  the 
transaction  of  its  business  in  the  city  of  Parsons  in  the  said 
state  of  Kansas,  and  was  and  is  a  citizen  of  said  state  of 
Kansas. 

Heretofore  and  on  or  about  the  1st  day  of  December,  1880, 
the  said  Missouri,  Kansas  &  Texas  Railway  Company,  being 
thereunto  duly  authorized,  by  its  president  and  secretary  and 
under  its  corporate  seal,  made  and  executed  its ,  forty-five 
thousand  bonds,  known  as  general  consolidated  mortgage 
bonds,  numbered  consecutively  from  1  to  45,000,  both  num- 
bers inclusive,  each  for  the  sum  of  $1,000,  bearing  date  on 
said  1st  of  December,  1880,  by  the  terms  of  which  bonds  the 
said  company  promised  to  pay  to  the  holder  of  each  bond,  or 
in  case  the  same  should  be  registered,  then  to  the  registered 
owner  thereof,  the  sum  of  $1,000,  United  States  gold  coin, 
of  or  equal  to  the  then  standard  of  value,  at  its  financial 
agency  in  the  city  of  New  York,  forty  years  after  the  date  of 
said  bond,  and  also  interest  thereon  at  the  rate  of  six  per 
centum  per  annum,  payable  semi-annually,  in  like  gold  coin, 
on  the  first  days  of  June  and  December  in  each  year,  on  the 
presentation  and  surrender  of  the  respective  interest  coupons 
annexed  to  said  bonds  at  the  financial  agency  aforesaid. 

On  or  about  said  1st  day  of  December,  1880,  the  said  Mis- 
souri, Kansas  &  Texas  Railway  Company,  being  the  owner 
of  or  having  an  interest  in,  by  way  of  lease  or  otherwise,  and 
being  in  possession  of,  the  lines  of  railway  and  property 
therein  described,  did,  in  order  to  secure  the  payment  of  the 
principal  and  interest  of  the  said  issue  of  general  consolidated 


564  SUITS    IN    EQUITY. 

bonds,  as  the  same  should  mature,  make,  execute  and  deliver 
to  plaintiff  a  certain  deed  or  indenture  of  trust  or  mortgage, 
known  as  its  general  consolidated  mortgage,  whereby  it  con- 
veyed to  plaintiff  as  trustee,  and  its  lawful  successor  or  suc- 
cessors in  the  trust  thereby  created,  and  assigns,  all  the  right 
of  way  and  railroad  and  other  property  of  the  said  Missouri, 
Kansas  &  Texas  Railway  Company  particularly  described  in 
said  mortgage,  with  the  exceptions  therein  noted,  which  prop- 
erty is  by  said  mortgage  more  particularly  described  as  fol- 
lows, to-wit:    [Here  follows  description.] 

It  was  expressly  provided  in  and  by  said  general  consoli- 
dated mortgage  that  while  the  bonds  therein  stated,  issued 
under  and  by  virtue  of  the  mortgages  made  by  the  Union 
Pacific  Railway  Company,  Southern  Branch,  on  the  14th  of 
November,  1868,  to  Russell  Sage  and  N.  A.  Cowdrey,  trus- 
tees, and  in  the  mortgage  made  by  the  said  Missouri,  Kansas 
and  Texas  Railway  Company  to  the  said  Union  Trust  Com- 
pany, dated  February  1,  1871,  were  outstanding  and  unpaid, 
the  lands  in  said  mortgages  described,  or  any  part  thereof, 
might  be  sold  in  accordance  with  the  provisions  in  said  mort- 
gages contained  and  the  proceeds  applied  to  the  payment  of 
the  bonds  secured  thereby,  the  same  as  if  the  general  consoli- 
dated mortgage  had  not  been  made.  But  that  when  the  bonds 
secured  by  said  two  mortgages  had  been  fully  paid,  retired  or 
cancelled,  and  the  mortgages  were  satisfied,  then  and  in  such 
case  all  the  provisions  of  the  ninth  article  of  the  mortgage  of 
February  1,  1871,  should  be  considered  and  taken  to  be  a 
part  of  the  general  consolidated  mortgage,  as  fully  to  all  in- 
tents and  purposes  as  if  it  had  been  incorporated  therein,  sub- 
stituting, however,  plaintiff  or  its  successor  in  place  of  said 
Union  Trust  Company. 

After  said  mortgage  was  made  the  Missouri,  Kansas  and 
Texas  Railway  Company  did  construct  and  acquire  certain 
lines  of  railroad  in  the  state  of  Texas,  and  did  expend  and 
use  in  and  about  the  construction  and  acquisition  thereof  large 
amounts  of  bonds  secured  by  said  general  consolidated  mort- 


BILLS    IX    SPECIAL    CASES.  565 

gage  and  proceeds  of  the  sales  of  such  bonds,  and  that  the 
lines  of  railroad  so  constructed  and  acquired,  and  which  are 
hereinafter  more  particularly  mentioned,  thereupon  became 
and  now  are  subject  to  the  lien  of  the  said  last-mentioned 
mortgage. 

A  true  and  correct  copy  of  the  said  general  consolidated 
mortgage  is  annexed  to  this  bill  of  complaint  and  marked 
Exhibit  "A,"  and  plaintiff  prays  that  the  same  may  be  taken 
as  a  part  of  this  bill  as  fully  as  if  embodied  herein.  That 
the  execution  of  said  general  consolidated  mortgage  to  secure 
the  payment  of  said  issue  of  bonds  was  duly  authorized  by 
the  board  of  directors  of  the  said  railway  company  and  was 
further  authorized  by  the  stockholders  of  said  railway  com- 
pany at  two  several  meetings,  held  respectively  on  the  19th  of 
May,  1880,  and  the  17th  day  of  November,  1880.  That  said 
general  consolidated  mortgage  was  duly  executed,  acknowl- 
edged and  recorded  as  required  by  law. 

It  was  provided  and  covenanted  in  by  said  general  con- 
solidated mortgage  that  of  the  bonds  authorized  to  be  issued 
as  aforesaid,  and  when  issued  to  be  secured  by  the  provisions 
of  said  mortgage,  bonds  numbered  from  1  to  18,217,  both 
numbers  inclusive,  should  be  certified  by  the  trustee  there- 
under, or  its  successor  or  successors  in  said  trust,  only  in  ex- 
change for  outstanding  issues  of  bonds  under  prior  mort- 
gages which  were  a  lien  upon  the  said  railroad  of  the  said 
party  of  the  first  part  thereto,  or  upon  some  part  thereof. 

Of  the  bonds  so  authorized  to  be  issued  as  aforesaid  and 
numbered  from  1  to  18,217.  both  numbers  inclusive,  no  bonds 
have  been  certified  and  delivered  by  plaintiff  as  trustee  under 
said  mortgage,  and  none  of  such  bonds  are  now  actually 
issued  and  outstanding. 

In  and  by  section  sixth  of  said  general  consolidated  mort- 
gage it  was  provided  that  bonds  numbered  from  18,218  to 
28,217,  both  numbers  inclusive,  amounting  in  the  aggregate 
to  $10,000,000,  were  set  apart  and  reserved  lor  retiring  upon 
such  plan  and  terms  as  should  be  adopted  by  the  board  of 


566  SUITS    IN    EQUITY. 

directors  of  the  said  railway  company,  the  income  bonds 
issued  or  which  might  be  issued  under  the  mortgage  of  April 
1,  1876,  made  by  said  railway  company  to  the  Union  Trust 
Company  as  trustee,  and  the  coupons  and  scrip  certificates 
representing  interest  accrued  upon  such  bonds. 

By  the  terms  of  a  resolution  of  the  board  of  directors  of 
the  said  railway  company,  passed  in  pursuance  of  the  pro- 
visions of  said  section  sixth,  it  was  provided  that  the  bonds 
issued  in  exchange  for  such  income  bonds,  coupons  and  scrip 
certificates  should  bear  interest  at  and  after  the  rate  of  five 
per  cent,  per  annum. 

Of  the  bonds  so  authorized  to  be  issued  by  said  section 
sixth,  bonds  numbered  from  18,218  to  27,591, .both  numbers 
inclusive,  amounting  in  the  aggregate  to  $9,374,000,  have 
been  actually  issued  and  are  now  outstanding  in  the  hands 
of  bona  fide  holders  thereof. 

By  the  terms  of  said  general  consolidated  mortgage  it  was 
provided  that  bonds  numbered  from  28,218  to  30,217,  both 
numbers  inclusive,  amounting  in  the  aggregate  to  $2,000,000, 
might  be  issued  and  used  for  the  purpose  of  providing  for 
new  equipment  and  rolling  stock;  further,  that  the  remaining 
bonds  numbered  from  30,218  to  45,000,  both  numbers  inclu- 
sive, were  to  be  issued  and  used  in  securing  the  construction 
and  acquisition  of  extensions  and  branches  of  said  railway  in 
the  states  of  Missouri,  Kansas,  Texas  and  Indian  Territory, 
and  elsewhere;  and  further,  that  the  said  railway  company 
might,  upon  the  conditions  therein  set  forth,  issue  bonds  to 
be  secured  by  said  mortgage,  in  addition  to  the  $45,000,000 
of  bonds  provided  for  therein,  at  the  rate  per  mile  specified 
in  said  mortgage. 

By  virtue  of  the  covenants  and  provisions  of  said  general 
consolidated  mortgage,  and  under  the  authority  therein  grant- 
ed, the  said  railway  company  has  made,  issued,  executed  and 
delivered,  and  plaintiff  as  trustee  under  said  mortgage  has 
certified  and  delivered,  bonds  numbered  from  28,218  to 
46,496,  both  numbers  inclusive,  amounting  in  the  aggregate 


BILLS    IN    SPECIAL    CASES.  567 

to  $18,278,000,  all  of  wliich  are  now  actually  outstanding  in 
hands  of  bona  fide  holders  thereof. 

In  accordance  with  the  action  in  that  regard  contemplated 
by  said  general  consolidated  mortgage,  and  in  order  to  better 
carry  out  the  intention  thereof  and  the  intention  of  the  pro- 
visions therein  contained,  the  said  railway  company  has  made, 
executed  and  delivered  to  plaintiff,  as  trustee,  certain  supple- 
mental mortgages  as  follows : 

First.  A  mortgage  dated  the  1st  day  of  March,  1882, 
wherein  and  w'hereby  it  conveyed  to  plaintiff,  upon  the  con- 
ditions and  covenants  contained  in  said  general  consolidated 
mortgage,  the  property  in  said  supplemental  mortgage  de- 
scribed. 

A  true  and  correct  copy  of  said  supplemental  mortgage  is 
annexed  to  this  bill  of  complaint  and  marked  Exhibit  "B," 
and  plaintiff  prays  that  the  same  may  be  taken  as  a  part  of 
this  bill  as  fully  as  if  embodied  herein. 

Second.  A  mortgage  dated  the  1st  day  of  December,  1886, 
wherein  and  whereby  it  conveyed  to  plaintiff,  upon  the  con- 
ditions and  covenants  contained  in  said  general  consolidated 
mortgage,  the  property  in  said  supplemental  mortgage  de- 
scribed. 

A  true  and  correct  copy  of  said  supplemental  mortgage  is 
annexed  to  this  bill  of  complaint  and  marked  Exhibit  "C," 
and  plaintiff  prays  that  the  same  may  be  taken  as  a  part  of 
this  bill  as  fully  as  if  embodied  herein. 

Third.  A  mortgage  dated  the  1st  day  of  December,  1887, 
wherein  and  whereby  it  conveyed  to  plaintiff,  upon  the  con- 
ditions and  covenants  contained  in  said  general  consolidated 
mortgage,  the  property  in  said  supplemental  mortgage  de- 
scribed. 

A  true  and  correct  copy  of  said  supplemental  mortgage  is 
annexed  to  this  bill  of  complaint  and  marked  Exhibit  "D," 
and  plaintiff  prays  that  the  same  may  be  taken  as  a  part  of 
this  bill  as  fully  as  if  embodied  herein. 


568  SUITS    IN    EQUITY. 

And  plaintiff  further  shows  that  said  railway  company,  in 
and  by  said  general  consolidated  mortgage,  expressly  granted, 
bargained,  sold,  assigned,  transferred  and  conveyed  to  plain- 
tiff, in  addition  to  the  property  herein  particularly  described, 
all  and  singular  its  railroad  and  branches,  to  be  constructed 
or  acquired  under  its  existing  charters,  constituent  acts  or 
any  amendments  thereof,  and  also  including  in  the  grant  and 
conveyance  therein  and  thereby  made  all  roads  then  owned 
by  it  or  all  that  it  might  thereafter  own,  whether  built  by 
itself  or  acquired  by  purchase,  consolidation  or  otherwise,  and 
also  all  leasehold  rights  which  might  be  acquired  in  other 
roads,  and  all  rights  acquired,  or  to  be  acquired,  in  other 
roads  under  contract  for  the  sole  or  joint  use  thereof  by  the 
said  railway  company,  and  that  the  said  railway  company 
thereby  agreed  to  execute  and  deliver  to  plaintiff,  as  trustee, 
or  its  successor  or  successors,  any  further  reasonable  and 
necessary  trust  deed,  to  bring  in  and  make  subject  to  the  con- 
ditions of  said  mortgage  every  such  extended  or  future  ac- 
quired road,  and  every  other  land  and  property,  real  or  per- 
sonal, that  might  thereafter  be  acquired  by  it,  for  the  pur- 
pose, and  with  the  intent,  of  securing  the  payment  of  the 
bonds,  composing  every  increased  issue,  as  well  as  the  bonds 
therein  described,  equally  and  alike  upon  the  property  of  the 
said  railway  company,  and  the  interest  due,  and  to  grow  due 
thereon,  in  the  same  manner  as  if  said  bonds  had  been  origi- 
nally secured  by  one  and  the  same  indenture. 

Said  defendant,  the  Missouri,  Kansas  and  Texas  "Railway 
Company,  since  the  execution  of  the  said  mortgage,  has  ac- 
quired, as  absolute  owner  thereof,  ninety-seven  thousand,  two 
hundred  and  eighty-four  shares  of  the  capital  stock  of  the 
International  and  Great  Northern  Railroad  Company,  a  cor- 
poration organized  and  existing  under  the  laws  of  the  state 
of  Texas. 

On  or  about  the  1st  day  of  June,  1881,  the  said  Inter- 
national and  Great  Northern  Railroad  Company,  being  there- 
to duly  authorized,  made,  executed  and  delivered  to  the  de- 


BILLS   IN    SPECIAL    CASES.  569 

fendant,  the  Missouri,  Kansas  and  Texas  Railway  Company, 
a  certain  indenture  in  the  nature  of  a  lease,  wherein  and 
whereby  it  leased  to  the  said  Missouri,  Kansas  and  Texas 
Railway  Company  all  its  property,  the  railroad  and  branches 
of  the  said  International  and  Great  Northern  Railway  Com- 
pany in  the  state  of  Texas  as  therein  particularly  described, 
to  which  said  indenture  of  lease  or  a  copy  thereof,  when  pro- 
duced, plaintiff  begs  leave  to  refer  for  the  contents  thereof, 
as  fully  as  if  the  same  had  been  embodied  and  made  part  of 
this  bill. 

Plaintiff  is  informed  and  believes  that  by  the  intention  and 
operation  of  the  terms  and  covenants  contained  in  said  gen- 
eral consolidated  mortgage  the  said  shares  of  the  capital  stock 
of  the  said  International  &  Great  Northern  Railway  Com- 
pany, and  all  right,  title,  interest,  claim,  property  or  posses- 
sion to  the  said  Missouri,  Kansas  &  Texas  Railway  Company 
acquired  in,  under  and  by  virtue  of  the  ownership  of  said 
shares  of  the  capital  stock,  and  in,  under  and  by  virtue  of 
said  indenture  of  lease  dated  the  1st  day  of  June,  1881,  im- 
mediately became  and  was  and  continued  to  be  subject  to  the 
lien  of  said  general  consolidated  mortgage,  and  became  and 
was  a  part  of  the  property  which  was  pledged  by  operation  of 
said  general  consolidated  mortgage  with  plaintiff,  as  a  fur- 
ther security  for  the  payment  of  the  principal  and  interest 
of  the  issue  of  bonds  thereby  secured. 

Said  Missouri,  Kansas  &  Texas  Railway  Company,  since 
the  date  of  the  said  general  consolidated  mortgage,  has  ac- 
quired by  purchase,  lease,  or  contract  in  the  nature  of  lease, 
or  by  construction  or  otherwise,  divers  other  lines  of  railway 
and  other  appurtenant  property,  situated  in  the  state  of  Texas 
and  the  Indian  Territory,  which  said  lines  of  railway  have  be- 
come and  now  are  subject  to  the  lien  of  said  mortgage  as  .1 
first  and  paramount  charge  or  incumbrance,  and  which  said 
lines  are  situated  and  extend  substantially  as  follows,  to-wit : 
[Here  follows  statement.] 


570  SUITS    IN    EQUITY. 

In  and  by  the  terms  of  the  resolution  of  the  board  of 
directors  of  the  said  defendant,  the  Missouri,  Kansas  &  Texas 
Railway  Company,  hereinabove  referred  to,  and  under  and 
by  virtue  of  all  the  bonds  issued  under  said  general  consoli- 
dated mortgage,  bearing  interest  at  five  per  cent,  per  annum 
and  issued  in  exchange  for  income  bonds,  scrip  and  coupon, 
it  was  further  provided  that  all  the  income  bonds  received  in 
exchange  for  the  new  five  per  cent,  bonds  and  the  coupons 
and  scrip  so  received  in  exchange  for  five  per  cent,  bonds 
should  be  deposited  with  plaintiff  as  trustee  and  held  uncan- 
celled as  security  for  the  new  bonds  until  all  the  income  bonds 
had  been  retired. 

Under  and  by  virtue  of  the  terms  of  said  resolution  plain- 
tiff has  received  and  now  holds  uncancelled  for  the  security 
of  the  new  bonds,  until  all  the  income  bonds  have  been  ex- 
changed,        dollars    in    par    of    said    income   bonds    with 

coupons  thereon  from  and  after  the  coupon  dated  ,  and 

coupons  and  scrip  certificates  detached  from  said  bonds  to  the 
amount  of dollars. 

Certain  portions  of  the  railroad  owned  by  said  railway 
company  were  at  the  time  of  the  execution  and  delivery  of 
said  general  consolidated  mortgage  incumbered  by  one  or 
more  mortgages  or  deeds  of  trust,  made,  executed  and  deliv- 
ered by  the  defendant  railway  corporation,  or  by  the  respec- 
tive corporations  which  owned  said  lines  or  portions  of  said 
railroad,  prior  to  the  time  of  the  acquisition  thereof  by  said 
Missouri,  Kansas  &  Texas  Railway  Company. 

That  the  mortgages  or  deeds  of  trust  which  at  the  time  of 
the  execution  and  delivery  of  said  general  consolidated  mort- 
gage were  liens  upon  portions  of  the  railway  and  equipment 
conveyed  thereby  are  substantially  as  follows :  [Here  follows 
statement.] 

On  or  about  the  1st  day  of  December,  1880,  by  an  inden- 
ture or  agreement  dated  on  that  day,  made  between  the  said 
Missouri,  Kansas  &  Texas  Railway  Company  and  the  Mis- 
souri   Pacific    Railway    Company,    said    Missouri,    Kansas   & 


BILLS    IN    SPECIAL    CASES.  571 

Texas  Railway  Company  leased,  demised  and  to  farmletted 
unto  the  Missouri  Pacific  Railway  Company  its  line  of  rail- 
way.    [^Here  follozvs  emim^ration.] 

In  and  by  the  terms  of  said  lease  it  was  made  expressly 
subject  and  inferior  to  the  lien  of  the  existing  mortgages 
upon  the  property  of  said  railway  company,  and  especially  to 
the  lien  of  the  general  consolidated  mortgage  executed  as 
aforesaid  by  the  Missouri,  Kansas  &  Texas  Railway  Company 
to  plaintiff  as  trustee. 

Said  lease  was  intended  to  and  by  its  terms  did  extend  to 
and  cover,  subject  as  aforesaid  to  the  lien  of  the  mortgages 
executed  by  the  Missouri,  Kansas  &  Texas  Railway  Com- 
pany, any  extensions  or  further  constructed  railway  of  said 
Missouri,  Kansas  &  Texas  Railway  Company. 

Plaintiff  further  says  that  the  said  Missouri  Pacific  Rail- 
way Company  has,  or  claims  to  have,  by  virtue  of  said  lease, 
some  claim  in  and  to  or  lien  upon  the  railway  of  said  Mis- 
souri, Kansas  &  Texas  Railway  Company,  which  lien  or 
claim,  if  any  it  has,  is  subject  and  inferior  to  the  lien  of  the 
general  consolidated  mortgage  so  as  aforesaid  executed  and 
delivered  to  plaintiff. 

That  on  the  1st  day  of  June,  1888,  there  became  due  and 
payable  and  accruing  upon  the  bonds  secured  by  said  general 
consolidated  mortgage,  and  then  actually  outstanding,  the 
semi-annual  installment  of  interest,  evidenced  by  the  coupons 
attached  to  said  bonds,  amounting  to  the  sum  of  $771,645. 
That  default  was  made  in  the  payment  of  the  interest  on  said 
bonds  and  said  installment  of  interest  accruing  on  said  bonds 
as  aforesaid.  That  the  said  Missouri,  Kansas  &  Texas  Rail- 
way Company  wholly  failed,  omitted  and  refused  to  pay  the 
said  installment  of  interest  and  to  pay  the  interest  mentioned 
and  provided  for  in  the  said  coupons  due  on  said  last-men- 
tioned day,  or  upon  any  of  them,  but  therein  wholly  made 
default ;  that  a  large  number  of  said  coupons,  representing 
interest  due  and  payable  upon  the  said  1st  day  of  June,  1886, 
were  on  that  day  actually  presented  for  payment  at  the  place 


572  SUITS    IN    EQUITY. 

where  the  same  were  and  are  payable,  to-wit,  at  the  financial 
agency  of  the  said  Missouri,  Kansas  &  Texas  Railway  Com- 
pany in  the  city  of  New  York,  and  payment  thereof  was  de- 
manded and  refused.  That  on  said  1st  day  of  June  said  rail- 
way company  also  made  default  in  payment  of  interest  then 
due  on  bonds  secured  by  mortgage  hereinbefore  mentioned, 
known  as  theTebo  &  Neosho  mortgage,  and  which  constitutes 
a  lien  'on  part  of  the  property  covered  by  said  general  con- 
solidated mortgage. 

That  the  holders  of  a  large  amount  in  value  of  said  general 
consolidated  mortgage  bonds  now  actually  outstanding  have 
in  writing  requested  plaintiff  to  enforce  the  remedies  provided 
in  said  mortgage  or  deed  of  trust. 

Plaintiff  is  informed  and  believes  that  said  railway  com- 
pany is  insolvent  and  unable  to  pay  its  floating  debt  and  cur- 
rent and  presently  accruing  indebtedness,  and  the  taxes  which 
have  been  levied  and  assessed  upon  the  property  of  said  rail- 
way company  by  the  municipal  and  state  authorities,  or  some 
of  them,  having  authority  to  levy  and  assess  such  taxes,  and 
that  some  portion  at  least  of  the  property  of  said  railway 
company  covered  by  said  mortgage  has  been  advertised  for 
sale  as  required  by  law  in  order  to  meet  the  payment  of  such 
taxes  so  levied  and  assessed  upon  its  property  and  in  default. 

Plaintiff  is  informed  and  believes  that  there  will  presently 
become  due  a  large  amount  on  account  of  wages,  labor  and 
current  expenses  of  said  railway  company,  which  the  said 
railway  company  is  wholly  unable  to  pay,  and  that  the  mort- 
gaged property  is  insufficient  and  inadequate  security  for  the 
payment  of  the  outstanding  bonds  secured  by  said  general 
consolidated  mortgage  after  providing  for  the  payment  of 
liens  prior  thereto  and  of  preferred  claims. 

That  there  is  great  danger  that  the  property  of  said  defend- 
ant railway  company,  or  some  part  of  it,  may  be  sold  in  order 
to  pay  the  taxes  so  levied  and  assessed  upon  it,  and  which  are 
now  in  default,  or  that  judgments  may  be  recovered  against 
it  for  the  floating  indebtedness  now  due  or  which  will  shortly 


BILLS    IX    SPECIAL    CASES.  573 

become  due,  and  that  the  property  of  said  railway  company 
may  be  sold  under  such  judgments  so  to  be  recovered  as 
aforesaid,  and  that  the  property  and  lines  of  said  Missouri, 
Kansas  &  Texas  Railway  Company  may  be  separated  and 
broken  up  and  the  earning  capacity  of  said  lines  destroyed  or 
greatly  impaired  by  the  contests  of  creditors  having  conflict- 
ing claims. 

No  proceedings  at  law  have  been  had,  nor  any  suit  or 
action  commenced,  by  or  on  behalf  of  plaintiff,  or  any  holder 
of  any  of  the  bonds  of  the  said  company,  secured  by  the 
mortgage  aforesaid,  for  any  interest  unpaid  or  accrued  there- 
on, except  only  this  action. 

In  consideration  whereof,  and  for  as  much  as  plaintiff  is 
remediless  in  the  premises,  at  and  by  the  strict  rules  of  the 
common  law,  and  is  only  relievable  in  a  court  of  equity, 
where  matters  of  this  kind  are  properly  recognizable  and 
relievable. 

Plaintiff  therefore  prays  the  aid  of  this  honorable  court, 
and  that  the  said  mortgage  or  deed  of  trust  may  be  decreed 
to  be  a  lien  upon  all  the  property,  real,  personal  or  mixed, 
rights,  franchises,  lands,  land  grants,  titles,  railroads,  branches 
and  extensions  of  the  said  Missouri,  Kansas  &  Texas  Railway 
Company,  described  in  the  said  mortgage  or  deed  of  trust, 
within  the  jurisdiction  of  this  honorable  court,  and  that  the 
said  Missouri,  Kansas  &  Texas  Railway  Company  may  be  de- 
creed to  pay  unto  plaintiff  and  the  other  bondholders  under 
aforesaid  mortgage  or  deed  of  trust  all  arrears  of  interest 
now  due,  or  that  may  hereafter  become  due  and  payable  upon 
said  bonds,  together  with  all  the  costs  and  expenses  in  this 
behalf  incurred  and  expended.  And,  in  default  thereof,  that 
the  said  defendants  above  named,  and  all  persons  claiming 
under  them  or  either  of  them,  may  be  forever  barred  and 
foreclosed  of  and  from  all  equity  of  redemption  and  claim  of, 
in  and  to  the  said  mortgaged  premises,  and  every  part  and 
parcel  thereof,  and  that  all  and  singular  the  said  mortgaged 
premises,  within  the  jurisdiction  of  this  honorable  court,  with 


574  SUITS    IN    EQUITY. 

the  appurtenances,  property  and  effects,  rights  and  immunities 
and  franchises  in  the  said  mortgage  mentioned,  may  be  sold 
under  a  decree  of  this  honorable  court,  and  that  out  of  the 
money  arising  from  the  sale  thereof,  after  deducting  from 
the  proceeds  of  any  such  sale  just  allowance  for  all  disburse- 
ments and  expenses  of  the  said  sale,  including  attorneys'  and 
counsel  fees,  and  the  reasonable  charges  of  plaintiff  for  serv- 
ices rendered  as  trustee  and  for  all  expenses  incurred  by  it  in 
the  premises,  and  all  pa5mients  which  may  be  made  for  taxes 
or  assessments  on  the  said  premises,  or  any  part  thereof,  to 
apply  the  said  proceeds  to  the  payment  of  the  principal  of 
such  of  the  aforesaid  bonds  as  may  be  at  that  time  unpaid, 
whether  or  not  tlie  same  shall  previously  have  become  due, 
and  of  the  interest  which  shall  at  that  time  have  accrued  on 
the  said  principal  and  be  unpaid,  without  discrimination  or 
preference,  ratably  to  the  aggregate  amount  of  such  unpaid 
principal  and  accrued  and  unpaid  interest. 

Plaintiff  further  prays  that  an  account  may  be  taken  of  the 
bonds  secured  by  the  said  general  consolidated  mortgage,  and 
of  the  amount  due  on  said  bonds  for  principal  and  interest,  or 
either,  and  the  names  of  the  lawful  holders  thereof  may  be 
ascertained. 

Plaintiff  further  prays  that  a  receiver  may  be  appointed 
according  to  the  course  and  practice  of  this  court,  with  the 
usual  powers  of  receivers  in  like  cases  of  all  the  property, 
equitable  interest,  things  in  action,  effects,  money,  receipts 
and  earnings,  rights,  privileges,  franchises  and  immunities  of 
the  said  railway  company,  and  of  all  other  property  included 
in  and  covered  by  the  said  mortgage  within  the  jurisdiction 
of  this  honorable  court,  and  that  the  defendants  be  decreed  to 
make  such  transfer  or  conveyances  to  such  receiver,  and  to 
the  purchasers  of  said  property  at  any  sale  as  aforesaid,  as 
may  be  necessary  and  proper  to  put  them  or  either  of  them 
in  possession  and  control  of  said  property. 

Plaintiff  further  prays  that  a  writ  of  injunction  issuing  out 
of  and  under  the  seal  of  this  honorable  court,  or  issued  by 


BILLS    IN    SPECIAL    CASES.  575 

one  of  your  honors,  according  to  the  form  of  the  statute  in 
such  case  made  and-  provided,  directing-,  commanding,  enjoin- 
ing and  restraining  the  said  defendants,  and  each  and  every 
one  of  them,  from  interfering  with,  transferring,  seHing  and 
disposing  of  any  of  the  property  mentioned  in  and  covered  by 
the  said  mortgage,  or  from  taking  possession  of,  levying  upon 
or  attempting  to  sell,  either  by  judicial  process  or  otherwise, 
any  portion  of  the  property  embraced  in  or  covered  by  the 
said  mortgage ;  and  that  plaintiff  may  have  such  further  or 
other  relief  in  the  premises  as  the  nature  of  the  circumstances 
of  this  case  may  require  and  to  this  honorable  court  shall 
seem  meet. 

And  it  may  please  your  honors  to  grant  unto  plaintiff  a 
writ  of  injunction,  issuing  out  of  and  under  the  seal  of  this 
lionorable  court,  or  issued  by  one  of  your  honors,  according 
to  the  form  of  the  statute  in  such,  case  made  and  provided, 
directing,  commanding,  enjoining  and  restraining  the  said  de- 
fendants, and  each  and  every  one  of  them,  from  interfering 
with,  transferring,  selling  or  disposing  of  any  of  the  property 
mentioned  in  or  covered  by  the  said  mortgage,  or  from  taking 
possession  of,  levying  upon  or  attempting  to  sell,  either  by 
judicial  process  or  otherwise,  any  portion  of  the  property 
embraced  in  or  covered  by  the  said  mortgage. 

And  as  to  the  said  Missouri  Pacific  Railway  Company, 
who  is  properly  a  party  defendant  to  this  bill  of  complaint, 
and  who  is  a  citizen  of  the  state  of  Missouri,  and  who  may 
be  out  of  the  jurisdiction  of  this  court,  plaintiff  prays  that 
process  may  be  issued  to  make  it  party  if  it  should  come 
within  such  jurisdiction,  or  that  if  it  should  not  come  within 
such  jurisdiction,  such  proceedings  may  be  had  in  regard  to 
such  defendant,  by  publication  or  otherwise,  to  conclude  it  in 
this  behalf  as  may  be  authorized  by  and  be  according  to  the 
form  of  the  statutes  in  such  case  made  and  provided. 

X.  &  X., 
Solicitors  for  Complainant. 


576  SUITS    IN    EQUITY. 

United  States  of  America, 

District  of ,  ss.  , 

E.  L.,  being  duly  sworn,  says  that  he  is  the  vice-president 
of  the  Mercantile  Trust  Company,  the  complainant  in  the 
foregoing  bill  of  complaint;  that  he  has  read  the  foregoing 
bill  of  complaint  and  knows  the  contents  thereof;  that  the 
allegations  therein  contained,  as  far  as  they  relate  to  his  own 
acts,  are  true,  and  as  far  as  they  relate  to  the  acts  of  others 
he  believes  them  to  be  true. 

That  in  regard  to  all  matters  and  things  in  the  foregoing 
bill  of  complaint  alleged  which  are  not  within  the  personal 
knowledge  of  this  deponent  the  deponent  has  been  fully  in- 
formed and  he  believes  that  the  same  are  true. 

E.  L. 

Sworn  to  before  me  this  day  of . 

[Seal]  H.  P., 

U.  S.  Commissioner  for  the 
District  of . 

(1')  Taken  from  the  record  in  Mercantile  Trust  Co.  v.  M.  K.  &  T.  Ry. 
pending  in  the  Circuit  Court  of  the  United  States  for  the  District  of  Kansas. 

As  to  bills  for  foreclosing  mortgages  see  note  to  Seattle,  etc.,  R.  R.  Co. 
V.  Union  Trust  Co.,  24  C.  C.  A.  523;  Compton  v.  R.  R.  Co.,  15  C.  C.  A. 
397,  68  Fed.  26S;  Toledo,  St.  L.  &  K.  C.  R.  R.  Co.  v.  Continental  Trust 
Co.,  36  C  C.  A.  155,  95  Fed.  497. 


No.  441. 

To  Have  Goods  Redelivered,  Which  Have  Been  Deposited  as 
a  Security  for  Money  Lent. 

[Caption  and  introduction.] 

That  plaintiff,  having  occasion  for  a  sum  of  money  for  the 
purpose  of  his  business,  made  application  to  C.  D.,  of,  etc.. 
the  defendant  herein,  to  lend  him  the  same,  and  thereupon 
the  said  C  D.,  on  or  about ,  advanced  and  lent  to  plain- 
tiff the  sum  of dollars,  and  in  order  to  secure  the  repay- 
ment thereof  with  interest,  plaintiff  deposited  with  the  said 


BILLS    IN    SPECIAL    CASES.  577 

defendant    [here  insert  a  description   of  the  goods],   which 

were  of  the  value  of  dollars,  and  upwards,  and  at  the 

same  time  executed  and  delivered  to  the  said  defendant  a  bill 
of  sale  of  the  said  goods  so  deposited  with  him;  but  it  was 
not  meant  and  intended  thereby,  either  by  plaintiff  or  the  said 
defendant,  that  the  said  transaction  should  amount  to  an  abso- 
lute sale  of  the  said  goods  to  the  said  defendant,  but  it  was 
expressly  agreed  between  plaintiff  and  the  said  defendant  that 
plaintiff  should,  nevertheless,  be  at  liberty  to  redeem  the  same. 

That  being  desirous  to  redeem  the  said  goods,  plaintiff  has 
repeatedly  applied  to  the  said  C.  D.,  and  has  offered  to  repay 
him  the  said  sum  of dollars,  with  lawful  interest  there- 
on, on  having  the  said  goods  redelivered  to  him,  with  which 
just  and  reasonable  requests  plaintiff  hoped  that  the  said 
C.  D.  would  have  complied,  as  in  justice  and  equity  he  ought 
to  have  done. 

Plaintiff  prays  that  the  defendant  may  answer  the  premises, 
and  that  an  account  may  be  taken  of  what  is  due  to  the  said 
defendant  for  principal  and  interest  in  respect  of  the  said  loan 

of  dollars,  and  that  upon  payment  thereof  by  plaintiff 

the  said  defendant  may  be  decreed  to  deliver  over  to  him  the 
said  goods  so  deposited  with  him  as  aforesaid. 


No.  442. 

To  Redeem  by  Purchaser  of  an  Equity  of  Redemption  from 
the  Assignee  in  Insolvency  of  the  Mortgagor. 

[Caption  and  introduction.] 

That  one  S.  H.,  of  N.,  in  said  county  of  W.,  and  state  of 

' ,  on  or  about  the  day  of  ,  was  seized  in  fee 

simple  of,  or  otherwise  well  entitled  to,  certain  real  estate 
situated  in  said  N.,  particularly  described  in  certain  deeds  of 
conveyance  of  the  same  to  said  S.  H. — one  from  J.  F.  and 

S.  W.,  dated ,  and  one  from  J.  E.,  dated ,  recorded 

in  the  registry  of  deeds  for  the  county  of  W.,  book  242.  page 
32;  also  a  deed  from  J.  E.  to  said  S.  H.,  dated ,  recorded 


578  SUITS    IN    EQUITY. 

in  said  registry  of  deeds,  book  248,  page  457,  copies  of  which 
deeds  are  hereunto  annexed,  and  made  a  part  of  this  bill,  and 
marked . 

And   plaintiff   further   shows   that   the   said    S.    H.,   on   or 

about   said  day   of  ,   made  a  conveyance  of  said 

premises,  by  way  of  mortgage,  to  one  H.  M.,  of  B.,  in  the 
county  of  S.,  and  commonwealth  of  Massachusetts,  to  secure 
the  repayment  of  a  sum  of  money,  with  interest  then  due 
from  the  said  S.  H.  to  the  said  H.  M. ;  and  that  subsequently, 
and  on  or  about  the day  of ,  the  said  H.  M.  trans- 
ferred and  assigned  all  his  interest  in  said  mortgage  deed, 
and  in  the  premises  therein  described,  and  in  the  debt  thereby 
secured,  to  the  defendant.  Copies  of  said  mortgage  deed, 
and  of  the  assignment  thereof,  are  hereunto  annexed,  marked 
,  and  made  a  part  of  this  bill. 

That  after  the  making  of  the  said  transfer,  and  on  the 

day  of ,  the  said  defendant  entered  into  the  possession  of 

the  said  mortgaged  premises,  or  into  the  receipt  of  the  rents 
and  profits  thereof,  and  has  ever  since  continued  in  such  pos- 
session and  receipt. 

That  since  the  said  mortgaged  premises  have  been  in  the 
possession  of  the  defendant,  the  mills  and  principal  buildings 
thereon  have  been  destroyed  by  fire,  and  that  the  same  were 
insured  by  the  said  S.  H.,  who  occupied  said  premises  under 
lease  from  said  defendant  for  the  benefit  of  said  defendant,  as 
further  security  for  said  mortgage  debt,  and  that  large  sums 
have  been  paid  to  said  defendant  on  said  policies,  and  that 
they  still  hold  other  policies  upon  the  machinery  in  said  mills, 
which  was  also  destroyed  by  fire,  which  policies  have  been 
assigned  to  said  defendant  as  further  security  for,  and  in  pay- 
ment of,  said  mortgaged  debt,  and  that  the  whole  amount  of 
said  policies  is  sufficient  to  cancel  the  greater  part,  if  not  the 
whole,  of  the  residue  of  said  debt,  which  liad  not  otherwise 
been  paid  by  said  S.  H.,  and  that  if  a  just  account  were  taken 
of  such  payments,  and  of  the  sums  received,  or  to  be  received, 
on  said  policies,  which  are  now  due  and  payable,  and  of  said 
rents  and   profits   received  by  said   defendant,   tlie   whole  of 


BILLS   IN    SPECIAL    CASES.  579 

said  mortgage  debt  would  be  found  to  be  justly  paid  and 
discharged. 

That  on  the  day  of  ,  the  equity  of  redemption 

which  the  said  S.  H.  retained  and  owned  in  said  property 
was  transferred  to  one  A.  W.  by  assignments  in  the  course 
of  proceedings  under  the  insolvent  law  of  said  commonwealth 
of  Massachusetts,  to  which  the  said  S.  H.  was  a  party,  and 
that  said  A.  W.,  as  such  assignee  of  said  S.  H.,  by  his  deed 
dated  the  day  of ,  conveyed  said  equity  of  redemp- 
tion to  plaintiff,  a  copy  of  which  deed  is  hereunto  annexed, 
marked . 

And  plaintiff  charges  that  the  matter  in  dispute  herein  ex- 
ceeds the  sum  or  value  of  three  thousand  dollars,  exclusive 
of  interest  and  costs. 

And  plaintiff  further  shows  that  being  the  owner  of  said 
right  of  redemption  in  said  property,  he  has  applied  to  said 
defendant  and  requested  him  to  come  to  an  account  for  the 
rents  and  profits  of  the  said  premises  so  received  by  him,  and 
of  the  moneys  received  by  him  from  said  S.  H.,  for  the  in- 
terest and  principal  of  said  debt,  and  from  the  said  policies 
of  insurance,  and  to  deliver  up  the  possession  of  said  mort- 
gaged premises  to  him,  upon  being  paid  what,  if  anything, 
should  be  found  to  be  justly  due  to  him  upon  said  account, 
which  plaintiff  is.  and  has  been,  ready  and  willing  to  pay, 
and  is  ready  to  bring  the  same  into  court,  if  anything  shall 
be  found  to  be  justly  due  to  said  defendant  upon  the  proper 
taking  of  said  account.  And  plaintiff  well  hoped  that  the 
said  defendant  would  have  complied  with  such  requests,  as  in 
justice  and  equity  he  ought  to  have  done ;  but  the  said  de- 
fendant, acting  in  concert  with  divers  persons  unknown  to 
plaintiff,  refused  to  comply  therewith,  and  insists  upon  hold- 
ing possession  of  said  estate,  and  foreclosing  plaintiff's  right 
of  redemption  therein,  and  restaining  said  policies  and  the 
amounts  received  thereon,  and  said  rents  and  profits,  without 
accounting  for  the  same. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he 
can,   show   why  plaintiff   should   not  have   the   relief   hereby 


580  SUITS    IN    EQUITY. 

prayed,  and  the  said  defendant  may  answer  the  premises,  and 
that  an  account  may  be  taken  of  what,  if  anything,  is  due  to 
the  said  defendant  for  principal  and  interest  on  the  said  mort- 
gage, and  that  an  account  may  be  taken  of  the  rents  and 
profits  of  the  said  mortgaged  premises,  which  have  been  pos- 
sessed or  received  by  the  said  defendant,  or  by  any  other 
person  or  persons,  by  his  order  or  for  his  use,  or  which,  with- 
out their  willful  default  or  neglect,  might  have  been  received; 
and  also  of  all  the  sums  that  may  have  been  paid  by  said 
S.  H.  or  others  towards  the  principal  and  interest  of  said 
mortgage  debt ;  and  also  of  the  policies  of  insurance  and  other 
securities  which  the  said  defendant  has  received,  and  of  the 
sums  which  he  has  or  might  have  realized  therefrom,  on  ac- 
count of  the  principal  and  interest  of  said  debt,  and  of  the 
value  of  such  policies  and  other  securities  now  in  his  hands 
on  account  of  said  debt,  which  he  has  not  sold  or  turned  into 
money;  and  that  the  said  defendant  be  ordered  to  apply  the 
same  to  the  payment  of  said  debt;  and  that  if  it  shall  appear 
that  said  rents  and  profits  and  the  payments  and  the  proceeds 
of  said  policies  and  other  securities  have  been  and  are  more 
than  sufficient  to  pay  the  principal  and  interest  of  said  mort- 
gage debt,  that  the  residue  may  be  paid  over  to  plaintiff;  and 
that  plaintiff  may  be  permitted  to  redeem  the  said  premises, 
he  being  ready  and  willing,  and  hereby  offering  to  pay  what, 
if  anything,  shall  appear  to  remain  due,  in  respect  to  the 
principal  and  interest  on  the  said  mortgage;  and  that  the 
said  defendant  may  be  decreed  to  deliver  up  possession  of  the 
said  mortgaged  premises  to  plaintiff,  or  to  such  person  as  he 
shall  direct,  free  from  all  encumbrances  made  by  him,  or  any 
persons  claiming  under  him,  and  may  deliver  to  plaintiff  all 
deeds  and  writings  in  his  custody  or  power  relating  to  the 
said  mortgaged  premises ;  and  that  plaintiff  may  have  such 
further  and  other  relief  in  the  premises  as  the  nature  of  this 
case  shall  require,  and  to  your  honors  shall  seem  meet. 
X.  &.  X.,  Solicitors.  A.  B. 

[Verification.'] 


BILLS   IN    SPECIAL    CASES.  581 

No.  443. 

By  Husband  of  Legatee  Against  Executor.  (1) 

[Captio)!  and  introduction.] 

That  W.  S.,.  late  of,  etc.,  duly  made  and  published  his  last 

will  and  testament  in  writing,  bearing  date  on  or  about  , 

and  thereby,  amongst  other  bequests,  gave  to  his  nephews 
and  nieces,  the  children  of  his  late  sister,  M.  A.,  the  sum  of 
dollars  each,  to  be  paid  to  them  as  they  should  respec- 
tively attain  the  age  of  twenty-one  years,  and  appointed  C.  D., 
of,  etc.,  the  defendant  hereinafter  named,  the  sole  executor 
of  his  said  will,  as  in  and  by  the  said  will,  or  the  probate 
thereof  when  produced  will  appear. 

That  the  said  C.  D.,  soon  after  the  death  of  the  said  tes- 
tator, duly  proved  the  said  will  in  the  proper  court,  and  hath 
since  possessed  himself  of  the  personal  estate  and  effects  of 
the  said  testator  to  an  amount  much  more  than  sufficient  for 
the  payment  of  his  just  debts,  funeral  and  testamentary  ex- 
penses and  legacies. 

That  after  the  death  of  the  said  testator  plaintiff  inter- 
married with  A.  A.,  who  was  the  niece  of  the  said  testator, 
and  one  of  the  children  of  the  said  M.  A.,  in  the  said  will 
named,  and  by  virtue  of  such  intermarriage  plaintiff  in  right 
of  his  said  wife  became  entitled  to  demand  and  receive  the 
aforesaid  bequest  of (2)  dollars. 

That  plaintiff's  said  wife  lived  to  attain  her  age  of  twenty- 
one  years,  and  that  she  hath  lately  departed  this  life,  and  that 
neither  plaintiff  nor  his  said  wife  received  any  part  of  the 
said  legacy. 

And  plaintiff  further  shows  that  having  obtained  letters  of 
administration  upon  the  estate  of  his  said  wife,  he  has  repeat- 
edly applied  to  the  said  C.  D.  for  the  payment  of  the  said 
legacy,  and  interest  thereon  from  the  time  of  his  said  late 
wife  attaining  her  age  of  twenty-one  years,  and  plaintiff 
hoped  that  such  his  reasonable  requests  would  have  been  com- 
plied with,  as  in  justice  and  equity  they  ought  to  have  been. 


582  SUITS    IN    EQUITY. 

But  now  so  it  is,  may  it  please  your  honors,  that   the  said 
C.  D.,  combining,  etc.     To  the  end,  therefore,  that,  etc. 

And  that  an  account  may  be  taken  of  what  is  due  and 
owing  to  plaintiff  for  the  principal  and  interest  of  the  said 
legacy,  and  that  the  said  defendant  may  be  decreed  to  pay 
the  same  to  plaintiff.  And  if  the  said  defendant  shall  not 
admit  assets  of  the  said  testator  sufficient  to  answer  the  same, 
then  that  an  account  may  be  taken  of  the  estate  and  effects 
of  the  said  testator  which  have  been  p>ossessed  or  received  by 
the  said  defendant,  or  by  any  other  person  by  his  order  or  to 
his  use,  and  that  the  same  may  be  applied  in  a  due  course  of 
administration.     [And  for  further  relief.] 

[Verification.] 

(1)  To  recover  a  legacy  at  common  law  the  assent  of  the  executor 
was  necessary;  and  the  jurisdiction  of  equity  over  legacies,  as  well  as 
over  administrations,  is  based  upon  the  trust  relation  existing  between 
an  executor  or  administrator  and  the  creditors,  legatees  and  distribu- 
tees ;  upon  the  necessity  of  a  discovery,  an  accounting  or  a  distributing 
of  assets  in  order  to  determine  the  rights  of  all  interested  parties;  and 
the  fact  that  the  remedies  given  by  all  other  courts  are  inadequate, 
incomplete  and  uncertain.  Pom.  Eq.  Jur.,  Sec.  1127.  In  this  country, 
probate  courts  have  generally  the  power  to  decree  the  payment  of  leg- 
acies at  the  suit  of  the  individual  legatees,  during  the  pendency  of  an 
administration ;  and  in  such  proceedings  they  follow  the  settled  doc- 
trines of  equity.  Pom.  Eq.  Jur.,  Sec.  1129.  For  an  extensive  collation 
of  the  cases  illustrating  the  jurisdiction  of  probate  courts  and  courts 
of  equity  in  the  several  states  over  the  administration  of  estates,  including 
suits  for  the  payments  of  legacies,  see  Pom.  Eq.  Jur.,  Sec.  1154,  note  2. 

(2)  For  jurisdictional  amount  see  Sec.  24,  Judicial  Code. 


No.  444. 

On  Behalf  of  Infant  Legatees.  (1) 

[Caption  and  introduction.] 

T'.ie  plaintiffs,  infants  under  the  age  of  twenty-one  years, 
by  J.  E.,  of,  etc.,  their  next  friend,  that  E.  H.,  the  elder,  late 
of,  etc.,  but  now  deceased,  duly  made  and  published  his  last 
will  and  testament  in  writing  bearing  date,  etc.,  whereby  he 
directed  that  W.  T.,  of,  etc.,  and  E.  B.,  of,  etc.,  the  defend- 


BILLS    IN    SPECIAL    CASES.  583 

ants  hereinafter  named,  and  C.  G.,  of,  etc.,  who  were  the 
trustees  and  executors  in  his  said  will  named,  should,  out  of 
the  mone3'S  which  should  come  to  their  hands  in  manner 
therein  mentioned,  lay  out  and  invest  in  or  upon  government 

or  real  securities  at  interest  the  sum  of  dollars,  upon 

trust,  etc.  [The  trustees  were  to  pay  the  dividends  to  E.  H., 
the  testator's  zvife,  during  her  life,  or  until  her  second  mar- 
riage, and  after  her  decease  or  second  marriage,  the  whole  of 
the  dividends  to  he  applied  by  the  trustees  for  the  maintenance 
and  education  of  testator's  grandchildren,  the  plaintiffs,  to 
zvhom  the  principal  zuas  to  be  transferred,  to  the  grandsons  at 
twenty-one,  and  to  the  granddaughters  at  tzventy-one  or  mar- 
riage], as  in  and  by,  etc.  And  the  plaintififs  further  show 
that  the  said  testator  departed  this  life  in  or  about  the  month 

of  ,  without  having  in  any  manner  revoked  or  altered 

the  said  will,  except  by  a  codicil  bearing  date,  etc.,  which  did 

not  relate  to  or  affect  the  said  trustee  of  the  said  sum  of 

dollars. 

And  the  plaintififs  further  show  unto  your  honors  that  W. 
T..  and  E.  B.,  and  the  said  C.  G.  duly  proved  the  said  testa- 
tor's will,  and  acted  in  the  trusts  thereof,  and  out  of  the 
moneys  which  came  to  their  hands  from  the  estate  and  effects 
of  the  said  testator,  in  or  about,  etc.,  appropriated  the  sum  of 

pounds  sterling,  in  satisfaction  of  the  aforesaid  legacy, 

in  the  purchase  of  the  sum  of pounds  sterling  three  per 

cent,  consolidated  bank  annuities,  and  the  said  sum  of  stock 
is  now  standing  in  their  names  in  the  books  of  the  governor 
and  company  of  the  Bank  of  England. 

And  the  plaintiffs  further  show  that  the  said  C.  G.  has 
departed  this  life,  and  that  the  said  E.  H.,  on  or  about,  etc., 
intermarried  with  and  is  now  the  wife  of  the  said  J.  E., 
whereupon  the  interest  of  the  said  E.  H.  in  the  said  sum  of 

pounds  sterling  three  per  cent,  consolidated  bank  an- 
nuities wholly  ceased. 

And  the  plaintiffs  further  show  that  the  said  defendants 
paid  to  the  said  J.  E.  and  E.,  his  wife,  the  year's  dividends 


584  SUITS    IN    EQUITY. 

which  became  due  on  the  said  sum  of  stock  on  the day 

of ,  as  well  for  the  interest  of  the  said  E.  E.  in  the  said 

stock  as  for  the  maintenance  and  education  of  the  plaintiffs 
up  to  that  time ;  but  the  said  defendants  have  retained  in  their 
hands  the  subsequent  dividends  which  accrued  due  on  the 
said  stock,  and  have  made  no  payments  or  allowances  thereon 
for  the  maintenance  or  education  of  the  plaintiffs. 

And  the  plaintiffs  further  show  that  some  proper  person  or 
persons  ought  to  be  appointed  as  the  guardian  or  guardians 
of  the  plaintiffs,  with  suitable  allowances  for  their  mainte- 
nance and .  education   for  the  time  past  since  the  said  

day  of ,  and  for  the  time  to  come,  and  that  the  said  sum 

of  stock  ought  to  be  secured  in  this  honorable  court.  To  tlie 
end,  therefore,  etc. 

And  that  the  said  defendants  may  answer  the  premises; 
and  that  some  proper  person  or  persons  may  be  appointed  the 
guardian  or  guardians  of  the  plaintiffs,  with  suitable  allow- 
ances for  their  maintenance  and  education  for  the  time  past 

since  the  said  day  of  ,  and  for  the  time  to  come, 

and  that  the  said  defendants  may  account  for  the  dividends 
of  the  said  trust  stock  which  have  accrued  due  since  the  said 

day  of ,  and  may  thereout  pay  the  allowances  which 

shall  be  made  for  the  maintenance  and  education  of  the  plain- 
tiffs since  the  said day  of ,  and  may  pay  the  residue 

thereof  into  this  honorable  court  for  the  benefit  of  the  plain- 
tiffs ;  and  may  transfer  also  the  said   sum  of  pounds 

sterling  three  per  cent,  consolidated  bank  annuities  into  the 
name  of  the  accountant  general  of  this  honorable  court,  to  be 
there  secured  for  the  benefit  of  the  plaintiffs  and  such  other 
persons  as  may  eventually  be  interested  therein.  [And  for 
further  relief.] 

[Verification.] 

(1)  A  specific  legatee,  filing  a  bill  for  a  general  account  of  the  admin- 
istration, is  not  confined  to  the  particular  errors  alleged  in  the  bill,  as 
he  might  be  if  he  were  surcharging  and  falsifying  a  stated  account. 
Pulliam  V.  Pulliam,  10  Fed.  53. 

Jurisdictional  amount  must  be  alleged,  Judicial  Code,  Sec.  24. 


BILLS    IX    SPECIAL    CASES.  585 

No.  445. 

By  an  Executor  and  Trustee  Under  a  Will,  to  Carry  the 
Trusts  Thereof  into  Execution.  (1) 

[Caption  and  introduction.] 

The  plaintiff,  A..  B.,  of,  etc.,  is  executor  of  the  will  and 
codicils  of  M.  S.,  late  of,  etc.,  deceased,  and  also  a  trustee, 
devisee  and  legatee  named  in  the  said  will  and  codicils,  and 
that  the  said  M.  S.,  at  the  several  times  of  making  her  will 
and  codicils  hereinafter  mentioned,  and  at  the  time  of  her 
death,  was  seized  or  entitled  in  fee  simple  of  or  to  divers 
messuages,   lands,  etc.,   of  considerable  yearly  value,   in  the 

several  counties  of  C.  and  D.,  in  the  state  of ,  and  being 

so  seized  or  entitled,  and  also  possessed  of  considerable  per- 
sonal estate,  the  said  M.  S.,  on  or  about  ,  made  her  last 

will  and  testament  in  writing,  and  which  was  duly  signed 
and  attested  and  published  by  her,  according  to  law,  and 
thereby,  after  giving  divers  pecuniary  and  specific  legacies 
and  divers  annuities,  the  said  testatrix  gave  and  devised  unto 
the  plaintiff  all,  etc.  [Stating  the  substance  of  the  will.]  And 
the  said  testatrix  afterwards,  on  or  about ,  made  a  cod- 
icil to  her  said  will,  which  was  duly  signed,  attested  and 
published  according  to  law,  and  thereby  gave,  etc.,  and  in  all 
other  respects  she  thereby  confirmed  her  said  will  and  all 
other  codicils  by  her  theretofore  made ;  as  by  said  will  and 
the  said  several  codicils  thereto,  or  the  probate  thereof,  to 
which  the  plaintiff  craves  leave  to  refer,  when  produced,  will 
appear. 

And   the   plaintiff   further    shows    that   the    said    testatrix, 

M.   S.,  departed  this  life  on  or  about  ,   without  having 

revoked  or  altered  her  said  will  and  codicils,  save  as  such 
will  is  revoked  or  altered  by  the  said  codicils,  and  as  some  of 
the  said  codicils  have  been  revoked  or  altered  by  some  or  one 
of  such  subsequent  codicils;  and  the  said  testatrix  at  her 
death  left  the  said  E.  G.,  formerly  E.  S.,  and  the  said  B.  S., 
her  cousins  and  co-heiresses  at  law.     And  the  plaintiff  being 


586  SUITS    IN    EQUITY. 

by  the  said  codicil  of  the  day  of  ,  appointed  sole 

executor  of  the  said  will  and  codicils,  has  since  her  death 
duly  proved  the  said  will  and  codicils  in  the  proper  court,  and 
taken  upon  himself  the  execution  thereof. 

And  the  plaintiff  further  shows  that  the  said  testatrix,  at 
the  time  of  her  death,  was  possessed  of,  interested  in,  and 
entitled  unto  considerable  personal  estate  and  effects,  and, 
amongst  other  things,  she  was  entitled  to  an  eighth  share 
and  interest  in  a  certain  co-partnership  trade  or  business  of  a 
tin-blower  and  tin-melter,  which  was  carried  on  by  the  testa- 
trix and  certain  other  persons  at ,  under  the  firm  of  S.  F. 

&  Co.,  in  which  the  testatrix  had  some  share  of  the  capital, 
and  which  was  a  profitable  business,  and  by  the  articles  of  co- 
partnership under  which  the  said  business  was  carried  on,  the 
plaintiff,  as  the  said  testatrix's  personal  representative,  is  now 
entitled  to  be  concerned  in  such  share  of  the  said  business  for 
the  benefit  of  said  testatrix's  estate;  and  she  was  also  pos- 
sessed of  or  entitled  to  certain  leasehold  estates  held  by  her 
for  the  remainder  of  certain  long  terms,  etc. 

And  the  plaintiff  further  shows  that  he  has  possessed  him- 
self of  some  parts  of  the  testatrix's  personal  estate,  and  has 
discharged  her  funeral  expenses,  and  some  of  her  debts  and 
legacies,  and  the  plaintiff  has  also,  so  far  as  he  has  been  able, 
entered  into  possession  of  the  said  testatrix's  estates,  which 
she  was  seized  of,  or  entitled  to  at  the  times  when  she  made 
her  said  will  and  codicils,  and  which  consisted  of,  etc.,  being 
all  together  of  the  yearly  value  of  dollars  or  there- 
abouts, besides  the  said  mansion-house,  and  besides  the  prem- 
ises, which,  by  the  said  codicil,  dated  on  the day  of . 

are  devised  to  the  plaintiff  for  his  own  use  and  benefit;  and 
the  plaintiff  is  desirous  of  applying  the  said  testatrix's  per- 
sonal estate  and  effects,  not  specially  bequeathed,  in  payment 
of  the  said  testatrix's  debts,  and  of  her  legacies  now  remain- 
ing unpaid,  and  of  the  annuities  bequeathed  by  the  said  will 
and  codicils,  so  far  as  the  same  will  extend,  and  of  paying  the 
remainder  thereof  out  of  the  rents  and  profits  of  the  said  real 


BILLS    IN    SPECIAL    CASES.  587 

estate,  and  of  applying  the  whole  of  the  rents  and  profits, 
iiccording  to  the  directions  of  the  said  will  and  codicils,  as  in 
justice  and  equity  ought  to  be  the  case. 

But  now  so  it  is,  may  it  please  your  honors,  that  the  said 
C.  D.  and  E.,  his  wife,  B.  S.,  and  J.  S.,  in  concert  with  each 
other,  make  various  objections  to  the  plaintiff's  applying  the 
said  personal  estate,  and  the  rents  and  profits  of  the  said  real 
estate,  according  to  the  directions  of  the  said  will  and  codicil; 
and  the  said  defendants,  C.  D.  and  E.,  his  wife,  sometimes 
pretend  that,  by  virtue  of  the  said  testatrix's  will,  they  are 
entitled  to  the  residue  of  the  said  testatrix's  personal  estate, 
not  specifically  bequeathed,  including  all  her  household  estates, 
after  payment  of  all  her  funeral  expenses  and  debts,  and  that 
the  said  personal  estate  is  not  subject  to  the  payment  of  the 
several  legacies  and  annuities  given  by  the  testatrix's  said  will 
and  codicils,  but  is  exempt  therefrom,  and  that  all  the  said 
legacies  and  annuities  ought  to  be  paid  out  of  the  rents  and 
profits  of  the  said  testatrix's  real  estates. 

Whereas  the  plaintiff  charges  the  contrary  of  such  pre- 
tenses to  be  true,  and  that  the  said  personal  estate  is  appli- 
cable to  the  payment  of  all  the  said  testatrix's  legacies  and 
annuities,  after  satisfying  all  her  funeral  expenses  and  debts; 
and  the  said  C.  D.  and  E.,  his  wife,  are  desirous  that  the 
plaintiff,  as  the  personal  representative  of  the  said  testatrix, 
should,  by  means  of  the  said  testatrix's  share  of  the  capital 
employed  in  the  said  trade  or  business,  carry  on  the  said 
trade  or  business  for  the  benefit  of  them  and  of  the  said 
testatrix's  estate,  but  which  the  plaintiff  can  not  safely  do 
without  the  direction  and  indemnity  of  this  court;  and  the 
said  C.  D.  alleges  that  he  is  not  of  ability  to  maintain  and 
educate  his  said  son,  J.  S.,  who  is  an  infant  of  the  age  of  ten 
years  or  thereabouts,  and  he  therefore  claims  to  have  some 
part  of  the  rents  and  profits  of  the  said  premises  paid  to  him, 
for  the  maintenance  and  education  of  the  said  J.  S. ;  and  the 
plaintiff,  under  the  circumstances  aforesaid,  is  unable  to  ad- 
minister the  said  personal  estate,  and  to  execute  the  trusts  of 


588  SUITS   IN   EQUITY. 

the  said  real  estate,  without  the  directions  of  this  honorable 
court,  and  the  defendants  are  desirous  of  having  a  person 
appointed  by  this  court  to  receive  the  rents  and  profits  of  the 
said  real  estate,  devised  as  aforesaid  by  the  said  fifth  codicil, 
to  which  the  plaintiff  has  no  objection.  In  consideration 
whereof,  etc.     To  the  end,  therefore,  etc. 

And  that  the  trusts  of  said  will  and  codicil  may  be  per- 
formed and  carried  into  execution  by  and  under  the  direction 
of  this  court,  and  that  an  account  may  be  taken  of  the  said 
testatrix's  personal  estate  and  effects,  not  specifically  be- 
queathed, and  of  her  funeral  expenses  and  debts,  and  of  the 
legacies  and  annuities  bequeathed  by  the  said  will  and  codi- 
cils, the  plaintiff  being  ready  and  hereby  offering  to  account 
for  all  such  parts  of  the  said  personal  estate  as  have  been 
possessed  by  him,  and  that  the  said  personal  estate  may  be 
applied  in  payment  of  the  said  funeral  expenses,  debts  and 
legacies  and  annuities  in  a  due  course  of  administration,  and 
that  the  clear  residue,  if  any,  of  the  said  personal  estate  may 
be  ascertained  and  paid  to  the  said  defendants,  C  D.  and  E., 
his  wife,  in  her  right ;  and  in  case  it  shall  appear  that  the 
said  personal  estate,  not  specifically  bequeathed,  is  not  suf- 
ficient for  payment  of  all  the  said  funeral  expenses,  debts, 
legacies  and  annuities,  or  that  any  parts  thereof  are  not  pay- 
able out  of  such  personal  estate,  then  that  proper  directions 
may  be  given  for  payment  of  such  deficiency,  or  of  such  parts 
thereof  as  are  not  payable  out  of  the  said  personal  estate, 
according  to  the  trusts  of  the  said  term  of  one  hundred  years, 
vested  in  the  plaintiff  as  aforesaid,  and  that  an  account  may 
be  taken  of  the  rents  and  profits  of  the  said  real  estates,  com- 
prised in  the  said  term  received  by  or  come  to  the  hands  of 
the  plaintiff,  and  that  the  same  may  be  applied  according  to 
the  trusts  of  the  said  term;  and  that  proper  directions  may 
be  given  touching  the  effects  specifically  bequeathed  by  the 
said  will  and  codicils  as  heirlooms,  and  that  proper  inven- 
tories may  be  made  thereof;  and  that  all  necessary  directions 
may  be  given  touching  the  application  of  a  sufficient  part  of 


BILLS    IN    SPECIAL    CASES.  589 

the  rents  and  profits  of  the  said  real  estates  to  the  main- 
tenance and  education  of  the  said  J.  S.,  in  case  this  court 
shall  be  of  opinion  that  any  allowance  ought  to  be  made  for 
that  purpose;  and  that  a  proper  person  may  be  appointed  by 
this  honorable  court  to  receive  the  rents  and  profits  of  the 
said  real  estates  devised  as  aforesaid  by  the  fifth  codicil.  [And 
further  relief.] 

[Verification.] 

(1)  In  pleading  a  trust  concerning  lands  it  need  not  be  alleged  that 
it  was  created  by  writing;  this  will  be  presumed  if  the  statute  requires 
a  writing  in  order  to  create  such  a  trust  as  the  bill  alleges.  Lamb  v. 
Starr,  Deady  (U.  S.)  350.  Equity  will  enforce  all  lawful  trusts.  If  a 
trust  should  be  created  for  an  illegal  or  fraudulent  purpose,  equity  will 
not  enforce  it,  nor,  it  seems,  relieve  the  person  creating  it,  by  setting 
aside  the  conveyance.  When,  however,  a  trust  is  unlawful  because  for- 
bidden by  statute,  the  whole  disposition  is  void.     Pom.  Eq.  Jur.,  Sec.  9S7. 


No.  446. 

To  Cancel  a  Written  Instrument — A  Bill  of  Exchange.(l) 

[Caption  and  introduction.] 

That  plaintiff,  previously  to  the  month  of  ,   had   fre- 
quently accepted  bills  of  exchange  for  the  accommodation  of 

Messrs.  D.  W.  and  J.  H.,  then  of .     And  that  some  time 

in  or  about  the  said  month  of  they  applied  to  plaintiff 

to  assist  them  with  a  loan  of  his  acceptance  for  a  sum  of 
money,  and  they  severally  assured  him  that  if  he  would  ac- 
cept or  indorse  a  certain  bill  of  exchange  for  them,  the  said 
D.  W.  and  J.  H.,  they  could  procure  the  same  to  be  dis- 
counted, and  that  they,  or  one  of  them,  would  punctually 
provide  plaintiff  with  the  money  to  take  up  the  same.  Rely- 
ing upon  such  promise,  he  agreed  to  accept  such  bill  of  ex- 
change to  be  drawn  upon  him  by  the  said  D.  W..  and  J.  H. 
accordingly  drew  upon  plaintiff  a  certain  bill  of  exchange  for 

the  sum  of dollars, (2)  dated  the day  of ,  and 

payable  three  months  after  date,  which  plaintiff  thereupon 
accepted. 


590  SUITS    IN    EQUITY. 

That  the  said  bill  of  exchange  having  been  delivered  by 
plaintiff  to  the  said  D.  W.  and  J.  H.,  without  any  considera- 
tion whatsoever  had  or  received  by  plaintiff  for  the  same,  the 
said  D.  W.  and  J.  H.  ought  either  to  have  provided  him  with 
the  money  to  take  up  the  same  when  due,  as  they  had  prom- 
ised, or  else  have  redelivered  the  same  to  him  to  be  cancelled; 
but  the  said  D.  W.  and  J.  H.,  combining  and  confederating 
to  and  with  J.  J.,  of,  etc.,  and  T.  O.,  of.  etc.,  and  with  divers 
other  persons,  etc.,  they,  the  said  confederates,  absolutely  re- 
fuse to  deliver  or  cause  or  procure  to  be  delivered  up  to  plain- 
tiff the  said  bill  of  exchange  to  be  cancelled,  and  instead 
thereof  the  said  T.  O.  hath  got  into  his  possession  the  said 
bill,  and  has  lately  commenced  an  action  at  law  against  plain- 
tiff to  recover  the  amount  thereof,  the  said  confederates,  or 
some  of  them,  at  times  giving  out  and  pretending  that  the 
said  bill  of  exchange  was  made  and  given  by  plaintiff  to  the 
said  D.  W.  and  J.  H.  for  a  full  valuable  consideration  or  con- 
siderations in  money. 

Whereas  plaintiff  expressly  charges  the  contrary  thereof  to 
be  the  truth,  and  that  he  never  had  or  received  any  good  or 
valuable  consideration  or  considerations  for  the  said  bill  of 
exchange,  and  that  the  same  was  delivered  by  him  to  the  said 
D.  W.  and  J.  H.,  for  their  accommodation,  without  receiving 
any  consideration  or  considerations  for  the  same,  and  upon 
the  firm  reliance  that  they,  or  one  of  them,  would  supply  him 
with  the  money  to  take  the  said  bill  up  when  the  same  became 
due  and  payable,  and  so  the  said  confederates  will  sometimes 
admit;  but  then  the  said  confederate,  J.  J.,  pretends  that  he 
discounted  the  said  bill  of  exchange  for  full  valuable  con- 
siderations in  money  or  otherwise  at  the  time  when  the  said 
bill  was  indorsed  to  him,  and  that  when  he  paid  or  gave  the 
full  valuable  consideration  or  considerations  for  the  same,  he 
had  not  notice  that  the  said  bill  had  been  given  by  plaintiff 
in  the  manner  and  upon  the  express  stipulations  hereinbefore 
mentioned,  or  without  a  full  valuable  or  any  consideration 
received  by  plaintiff  for  the  same,  and  that  therefore  plaintiff 


BILLS  IN   SPECIAL   CASES.  591 

ought  to  pay  the  amount  thereof.  And  the  said  J.  J.  further 
pretends  that  he  indorsed  the  said  bill  of  exchange  to  the  said 
T.  O.  for  good  and  valuable  considerations  before  he,  the  said 
J.  J.,  received  any  notice  from  plaintiff,  and  before  plaintiff 
had  requested  him  to  deliver  up  the  same.  Whereas  plaintiff 
charges  the  contrary  of  all  such  pretenses  to  be  true,  and  par- 
ticularly that  the  said  J.  J.  did  not  ever  give,  pay,  or  allow 
to  the  said  D.  W.  and  J.  H.,  or  either  of  them,  the  full  value 
or  any  consideration  whatever,  for  the  said  bill  of  exchange; 
and  that  the  said  J.  J.  had  full  notice,  or  had  some  reason  to 
know,  believe  or  suspect  that  the  said  bill  had  been  given  by 
plaintiff  to  the  said  D.  W.  and  J.  H.,  in  the  manner  and  upon 
the  express  stipulations  hereinbefore  mentioned,  and  without 
any  valuable  or  other  considerations  having  been  received  by 
him  therefor. 

Plaintiff  further  says  that  the  said  J.  J.  received  the  said 
bill  from  the  said  D.  W.  and  J.  H.,  to  get  the  same  dis- 
counted for  them,  and  with  an  express  undertaking  on  his 
part  to  deliver  over  the  money  he  obtained  upon  such  bill  to 
them,  the  said  D.  W.  and  J.  H.,  but  that  he  never  did  procure 
such  bill  to  be  discounted,  or  if  he  did  he  applied  the  moneys 
he  obtained  upon  the  same  to  his  own  use,  and  never  paid  or 
delivered  over  any  part  thereof  to  the  said  D.  W.  and  J.  H., 
or  either  of  them. 

Further  plaintiff  says  that  the  said  J.  J.  has  received  notice 
from  plaintiff  and  the  said  D.  W.  and  J.  H.,  of  the  terms 
upon  which  the  said  bill  had  been  obtained  by  the  said  D.  W. 
and  J.  H.,  and  had  been  required  by  plaintiff  to  deliver  up 
the  same  to  him  before  he,  the  said  J.  J.,  had  indorsed  the 
said  bill  of  exchange  to  the  said  T.  O.,  and  as  evidence  there- 
of plaintiff  expressly  charges  that  the  said  J.  J.  had  the  said 
bill  of  exchange  in  his  custody,  possession  or  power  on  the 

day  of ,  last  past;  and  that  the  said  J.  J.  did,  on 

the day  of ,  last,  offer  the  said  bill  of  exchange  for 

sale,  together  with  other  bills,  to  various  persons. 


592  SUITS    IN    EQUITY. 

That  at  the  time  of  the  said  bill  of  exchange  being  indorsed 
or  delivered  to  the  said  T.  O.,  and  of  his  paying  or  giving 
such  consideration  or  considerations  (if  any  were  or  was  paid 
by  him),  he  knew,  or  had  been  informed,  or  had  some  reason  to 
know,  believe  or  suspect  that  plaintiff  and  the  said  D.  W.  and 
J.  H.  had  never  received  the  full  or  any  consideration  for  the 
said  bill  of  exchange,  and  he  well  knew  or  had  been  informed 
that  plaintiff  had  accepted  the  said  bill  of  exchange  for  the 
accommodation  of  the  said  D.  W.  and  J.  H.,  without  having 
received  any  consideration  for  the  same. 

Plaintiff  further  says  that  the  said  T.  O.  is  a  trustee  for 
the  said  bill  of  exchange  for  the  said  confederate,  J.  J.,  or  for 
some  other  person  or  persons  whose  names  he  refuses  to  dis- 
cover, and  that  he  holds  the  same  for  the  said  confederate, 
J.  J.,  or  for  such  person  or  persons,  without  having  given  any 
consideration  or  considerations  for  the  same,  and  that  if  he 
receives  the  amount  of  the  said  bill  of  exchange,  or  any  part 
thereof,  he  is  to  deliver  over  or  pay  the  same  to  the  said  J.  J., 
or  such  other  person  or  persons,  and  that  he  is.  indemnified 
by  the  said  J.  J.,  or  such  other  person  or  persons,  from  all  the 
costs  attending  the  attempt  to  recover  upon  the  said  bill  of 
exchange  on  which  he  has  brought  his  said  action  at  law. 
And  notwithstanding  the  said  T.  O.  got  the  said  bill  of  ex- 
change into  his  possession  without  giving  any  consideration 
for  the  same,  yet  he  threatens  and  intends  to  proceed  in  his 
action  at  law,  and  in  case  he  should  recover  judgment  to  take 
out  execution  against  plaintiff  for  the  amount  thereof. 

Plaintiff  further  says  that  the  said  several  defendants,  or 
some  or  one  of  them,  now  have  or  has  or  lately  had  in  their  or 
one  of  their  custody,  possession  or  power  some  book  or  books 
of  accounts,  letters,  documents  or  writings  from  which  the 
truth  of  the  several  matters  and  things  aforesaid  would  ap- 
pear. And  so  it  would  appear  if  the  said  defendants  would 
set  forth  a  full,  true  and  particular  account  of  all  such  books 
of  account,  letters,  documents  and  writings.  Wherefore  plain- 
tiff prays  that  the  said  defendant,  T.  O.,  may  be  decreed  to 


BILLS    IN    SPECIAL    CASES.  593 

deliver  up,  and  the  said  D.  W.  and  J.  H.  and  J.  J.  be  decreed 
to  procure  the  said  bill  of  exchange  to  be  delivered  up  to 
plaintiff  to  be  cancelled,  as  having  been  given  by  plaintiff  and 
received  by  the  said  D.  \V.  and  J.  H.,  and  the  said  several 
defendants,  without  any  consideration.  And  that  the  said  de- 
fendants, respectively,  may  be  restrained  by  the  injunction  of 
this  honorable  court  from  proceeding  in  any  action  at  law 
already  commenced  against  plaintiff  upon  the  said  bill  of  ex- 
change, and  from  commencing  any  other  proceedings  at  law 
against  plaintiff  upon  the  said  bill  of  exchange.  And  that 
plaintiff  may  have  such  further  and  other  relief  in  the  prem- 
ises as  to  your  honor  shall  seem  meet  and  the  nature  of  this 
case  may  require. 

[Verification.] 

(1)  Mistake  of  law  is  no  ground  for  relief  if  it  consists  of  mere 
ignorance  of  law  on  part  of  complainant.  Allen  v.  Elder,  2  Am.  St. 
Rep.  63.  But  it  is  otherwise  of  an  honest  mistake  of  law  on  part  of  both 
parties.    Allen  v.  Elder,  2  Am.  St.  Rep.  63. 

To  reform  written  instruments  on  ground  of  mistake  it  must  be 
clearly  established,  but  relief  will  not  be  withheld  because  there  is  con- 
flicting testimony.     Hutchinson  v.  Ainsworth,  2  Am.  St.  Rep.  823. 

See  Fuller  v.  Percival,  126  Mass.  381,  where  a  firm  note  fraudulently 
given  by  a  partner  of  the  plaintiff  to  a  holder  with  notice  of  the  fraud 
was  canceled.  So  in  an  action  on  a  note  given  for  the  price  of  land, 
defendant  may  have  the  note  canceled  to  the  extent  of  the  damages 
sustained  by  him  by  reason  of  false  representations  in  the  sale.  Hosle- 
ton  v.  Dickinson,  51  Iowa  244. 

(2)  Must  exceed  $3,000  now  to  give  the  district  court  jurisdiction.  See 
Judicial  Code,  Sec.  24, 


No.  447. 

Suit  to  Determine  Legality  of  Municipal  Bonds  and  for 
Specific  Performance  and  Other  Relief. 

[Caption.] 

Come  now  the  plaintiffs  above  named  and  for  cause  of 
action  show  unto  your  honor: 

1.  That  the  plaintiff,  Sweet,  Causey,  Foster  and  Company, 
was  at  all  the  times  hereinafter  mentioned  and  still  is  a  cor- 


594  SUITS    IN    EQUITY. 

poration  organized  and  existing  under  the  laws  of  the  state 
of  Delaware  and  a  citizen  of  the  said  state;  that  the  plaintiff, 
James  N.  Wright  and  Company,  was  at  all  the  times  herein- 
after mentioned  and  still  is  a  corporation  organized  and  exist- 
ing under  the  laws  of  the  state  of  Delaware  and  a  citizen  of 
said  state;  that  the  plaintiff,  C.  W.  McNear  and  Company, 
was  at  all  the  times  mentioned  hereinafter  and  still  is  a  cor- 
poration organized  and  existing  under  the  laws  of  the  state 
of  Illinois  and  a  citizen  of  said  state. 

2.  That  the  defendant,  City  of  Bozeman,  was  at  all  the 
times  hereinafter  mentioned  and  still  is  a  municipal  corpora- 
tion organized  and  existing  under  the  laws  of  the  state  of 
Montana;  that  the  defendant,  John  A.  Luce,  was  at  all  the 
times  hereinafter  mentioned  and  still  is  the  duly  elected,  quali- 
fied and  acting  mayor  of  the  said  city  of  Bozeman  and  a 
citizen  of  the  state  of  Montana;  that  the  defendant,  C.  A. 
Spieth,  was  at  all  the  times  hereinafter  mentioned  and  still  is 
the  duly  appointed,  qualified  and  acting  city  clerk  of  the  said 
city  of  Bozeman  and  a  citizen  of  the  state  of  Montana. 

3.  That  this  is  a  suit  in  equity  between  citizens  of  different 
states  and  the  matter  in  controversy,  exclusive  of  interest  and 
costs,  exceeds  the  sum  or  value  of  three  thousand  dollars. 

4.  That  pursuant  to  the  powers  vested  in  municipal  cor- 
porations of  the  state  of  Montana  by  the  laws  of  said  state, 
the  duly,  elected,  qualified  and  acting  city  council  of  said  city 
of  Bozeman,  at  a  special  meeting  thereof  duly  held  at  the 
council  chambers  thereof  in  the  city  of  Bozeman  on  the  28th 
day  of  February,  1916,  duly  and  legally  passed  and  enacted  a 
certain  resolution,  known  as  Resolution  No.  695,  by  the 
affirmative  vote  of  all  the  members  thereof,  the  vote  being  by 
ayes  and  noes,  and  which  resolution  was  thereafter  on  said 
date  approved  by  the  mayor  of  said  city,  providing  for  the 
holding  of  a  special  election,  submitting  to  the  taxpayers  of 
said  city  the  question  of  issuing  water-works  bonds  upon  the 
credit  of  the  said  city  in  the  sum  of  two  hundred  and  thirty- 
five  thousand  dollars  ($235,000),  the  proceeds  from  the  sale 


BILLS   IN    SPECIAL    CASES.  595 

thereof  to  be  used  as  follows,  to-wit :  one  hundred  thousand 
dollars  to  be  used  in  redeeming  the  present  outstanding  water- 
works bonds,  and  the  balance  in  extending,  improving  and 
enlarging  the  existing  water-works  system  and  in  acquiring 
an  auxiliary  or  additional  water-works  system  from  Bozeman 
creek  for  said  city,  a  copy  of  which  said  resolution  is  hereto 
attached  as  "Exhibit  A"  and  made  a  part  hereof  the  same  as 
if  set  forth  at  length  herein. 

That  thereafter  and  at  the  same  meeting  and  pursuant  to 
the  same  powers  the  city  council  duly  and  legally  passed  and 
enacted  a  certain  other  resolution  known  as  Resolution  No. 
696,  by  the  affirmative  vote  of  all  the  members  thereof,  the 
vote  being  by  ayes  and  noes,  and  which  resolution  was  there- 
after on  said  date  approved  by  the  mayor  of  said  city,  pro- 
viding for  the  holding  of  a  special  election  for  the  purpose  of 
submitting  to  the  taxpayers  of  the  city  of  Bozeman  the  ques- 
tion of  the  city  issuing  sewer  bonds  upon  the  credit  of  the 
city  in  the  sum  of  seventy  thousand  dollars,  the  proceeds  from 
the  sale  thereof  to  be  used  in  extending,  improving  and  en- 
larging the  existing  sanitary  sewer  system  of  the  city  of 
Bozeman,  a  copy  of  which  said  resolution  is  hereto  attached 
as  "Exhibit  B"  and  made  a  part  hereof  the  same  as  if  set 
forth  at  length  herein. 

5.  That  by  the  terms  of  said  resolutions  a  special  election 
was  ordered  to  be  held  at  the  time  of  the  general  spring  elec- 
tion on  April  3,  1916,  for  the  purpose  of  ascertaining  the  will 
of  the  taxpayers  to  be  affected  thereby;  that  it  was  provided 
in  said  resolutions  that  separate  ballots  should  be  used  for 
such  special  election,  on  one  of  which  should  be  printed  the 

terms,  "Water  Works  Bonds,  Bonds Yes,  Bonds No," 

and  on  the  other  the  terms,  "Sewer  Bonds,  Bonds Yes, 

Bonds No." 

6.  That  under  and  by  virtue  of  the  provisions  of  said  reso- 
lutions the  city  clerk  was  authorized  and  directed  to  give 
notice  of  such  election  as  required  by  law,  and  said  notice  was 
given  by  posting  in  five  public  and  conspicuous  places  in  each 


596  SUITS    IN    EQUITY. 

ward  throughout  the  said  city,  was  also  published  in  the 
"Weekly  Courier,"  a  weekly  newspaper  published  in  said 
city,  once  a  week  for  five  consecutive  weeks,  the  first  publica- 
tion being  on  the  1st  day  of  March,  1916,  and  the  last  publi- 
cation being  on  the  29th  day  of  March,  1916,  and  which  said 
notices  so  posted  and  published  were  in  words  and  figures  as 
follows,  to-wit :    [Notice  follozvs  here.] 

7.  That  the  said  special  election  was  held  at  the  time  of  the 
general  election  for  said  city  on  the  3d  day  of  April,  1916, 
and  at  said  election  separate  ballots  and  separate  ballot-boxes, 
election  books,  sheets  and  certificates  were  used,  and  all  voting 
and  votes  upon  each  of  said  questions  were  upon  separate 
ballots,  and  the  questions  so  submitted  were  voted  upon  sepa- 
rately at  said  election,  and  the  counting  of  the  ballots  and  the 
certification  thereof,  and  the  canvass  of  the  votes  therefor, 
were  all  had  and  done  separately  with  reference  to  each  of 
the  said  questions;  that  at  a  meeting  of  the  city  council  held 
on  the  6th  day  of  April,  1916,  being  the  regular  meeting  fol- 
lowing said  election,  the  city  council  adjourned  to  meet  in 
regular  adjourned  session  on  April  7,  1916,  at  which  time  the 
returns  of  said  special  election  were  canvassed,  and  the  result 
thereof  determined  as  follows : 

For  the  water  bonds,  "Yes,"  224;  "No,"  132;  for  the 
sewer  bonds,  "Yes,"  239;  "No,"  116;  that  from  the  said  can- 
vass it  appeared  that  the  question  of  issuing  the  water  bonds 
had  carried  by  a  majority  of  92,  and  the  question  of  issuing 
the  sewer  bonds  had  carried  by  a  majority  of  one  hundred 
and  twenty-three  (123). 

8.  That  at  the  time  of  holding  said  special  election  the  said 
city  of  Bozeman  was  indebted  in  an  amount  exceeding  the 
three  per  cent,  limit  provided  for  by  the  constitution  and  laws 
of  the  state  of  Montana,  and  that  the  question  of  extending 
the  constitutional  limit  of  indebtedness  of  said  city  for  the 
purpose  of  procuring  a  water  supply  for  its  inhabitants,  or 
constructing  a  sewer,  was  not  submitted  to  the  taxpayers 
affected  thereby,  as  required  by  the  constitution  and  laws  of 


BILLS    IX    SPECIAL    CASES.  597 

the  state  of  Montana,  at  said  election  or  at  any  election  held 
prior  thereto  or  thereafter;  nor  was  the  said  question  ever 
submitted  to  the  taxpayers  afifected  thereby  except  as  herein- 
above set  forth. 

9.  That  thereafter  at  a  special  meeting  held  on  the  7th  day 
of  April.  1916,  the  city  council,  pursuant  to  authority  con- 
ferred by  statute,  appointed  the  18th  day  of  May,  1916,  at  7 :30 
o'clock  p.  m.,  in  the  city  hall  building  in  the  city  of  Bozeman. 
as  the  time  when  and  place  where  the  issue  of  $235,000 
of  water-works  bonds  and  $70,000  of  sewer  bonds  should  be 
offered  for  sale  at  public  auction,  and  the  city  clerk  was 
directed  to  give  notice  of  such  sale  by  advertisement  in  the 
"W'eekly  Courier,"  a  weekly  newspaper  published  in  said  city, 
and  in  the  "Financier,"  a  weekly  newspaper  published  in  the 
city  of  New  York,  for  four  weeks  before  the  18th  day  of 
May,  1916,  which  said  notice  as  directed  to  be  given  and  as 
actually  given  was  in  words  and  figures  as  follows,  to-wit: 
[Here  follows  notice.] 

10.  That  thereafter  and  pursuant  to  authority  conferred  by 
statute,  the  said  city  council,  at  its  regular  meeting  held  on 
the  7th  day  of  April,  1916,  duly  and  regularly  passed  and 
enacted  an  ordinance,  known  as  Ordinance  No.  456,  being  an 
ordinance  directing  the  issuance  of  water-works  bonds  to  the 
amount  of  $235,000,  a  copy  of  which  ordinance  is  attached 
hereto  as  "Exhibit  C"  and  made  a  part  hereof  the  same  as  if 
set  forth  at  length  herein. 

That  at  the  same  meeting  and  pursuant  to  the  same  au- 
thority the  said  city  council  duly  and  regularly  passed  and 
enacted  an  ordinance,  known  as  Ordinance  No.  457,  being  an 
ordinance  directing  the  issuance  of  sewer  bonds  to  the  amount 
of  $70,000,  a  copy  of  which  ordinance  is  hereto  attached  as 
''Exhibit  D"  and  made  a  part  hereof  the  same  as  if  set  forth 
at  length  herein.  [Here  follow  details  of  the  sale  and  agree- 
ment made,  including  the  deposit  of  a  certified  check,  and 
refusal  of  the  clerk  to  deliver  the  bonds,  or  to  turn  back  the 
check,  refusal  to  test  the  validity  of  the  bonds.]      *     *     * 


598  SUITS    IN    EQUITY. 

18.  That  the  plaintiffs  have  no  adequate  remedy  at  law  in 
the  premises.     Wherefore  plaintiffs  pray : 

1.  That  this  court  may  determine  whether  or  not  the  issue 
of  bonds  so  sold  to  these  plaintiffs  and  the  proceedings  inci- 
dent thereto  are  legal  and  valid. 

2.  That  if  the  issue  of  bonds  hereinabove  described  be  ad- 
judged to  be  illegal,  that  the  defendants  be  ordered  and  di- 
rected by  an  injunction  having  the  force  and  effect  of  a  writ 
of  mandamus  to  deliver  to  these  plaintiffs  the  two  certified 
checks  of  v$2,000  each,  drawn  on  the  Interstate  Trust  Com- 
pany, of  Denver,  Colorado,  in  favor  of  the  defendant,  City  of 
Bozeman;  or  if  the  said  checks  have  been  cashed  and  can  not 
be  returned,  that  the  plaintiffs  have  judginent  against  the 
city  of  Bozeman  for  the  sum  of  $4,000,  together  with  interest 
thereon  at  the  rate  of  eight  per  cent,  per  annum  from  the 
date  said  checks  were  cashed. 

3.  That  if  said  issue  of  bonds  be  adjudged  by  this  court  to 
be  legal  outstanding  obligations  of  the  city  of  Bozeman,  that 
a  writ  of  injunction  having  the  force  and  effect  of  a  writ  of 
mandamus  may  be  issued  out  of  this  honorable  court  com- 
manding the  defendants,  John  A.  Luce  and  C.  A.  Spieth,  as 
mayor  and  city  clerk,  respectively,  of  said  city  of  Bozeman, 
to  deliver  to  these  plaintiffs  the  issue  of  bonds  as  described  in 
said  bids,  upon  these  plaintiffs  depositing  in  this  court  the 
amount  of  said  bids. 

4.  That  upon  the  filing  of  this  bill  of  complaint  an  order 
be  issued  directed  to  the  said  defendants  and  each  of  them 
requiring  to  show  cause,  at  a  time  and  place  to  be  fixed  by 
this  court,  why  a  preliminary  writ  of  injunction  should  not 
issue  against  them,  enjoining  and  restraining  them  from  sell- 
ing and  delivering  said  issue  of  bonds  to  other  persons,  and 
from  negotiating  or  cashing  said  certified  checks  so  deposited 
with  them. 

5.  That  from  time  to  time  such  other  and  further  orders, 
general  and  specific,  may  be  made  by  your  honor  as  will  effec- 
tuate the  object  and  purposes  for  which  this  suit  is  brought. 


BILLS    IN    SPECIAL    CASES.  599 

and  that  the  plaintififs  may  have  such  writs,  processes  and 
other  aids  of  the  court  as  may  from  time  to  time  be  found 
necessary  to  accomplish  said  object  and  purposes. 

6.  And  for  all  such  other,  further  and  general  relief  as  to 
a  court  of  equity  may  seem  meet  in  the  premises. 

Signatures  of  Plaintiffs. 
X.  Y..  R.  O.  &  M.  K.,  By  A.  B.,  Solicitor. 

Of  Counsel. 

[Verification.] 


No.  448. 

To  Reform  a  Policy  of  Insurance. 

[Caption  and  introduction.] 

Plaintiff  says  that  on  the day  of,  etc.,  he  was  the  sole 

owner  of  a  ship  or  vessel  of  the  value  of dollars,  called 

the ,  then  lying  at  O.,  in  the  province  of ,  and  bound 

on  a  voyage  from  said  O.  to  a  port  of  discharge  in  said  U.  K., 
on  board  which  said  ship  there  had  been  and  was  then  laden  a 
cargo  of  merchandise,  the  property  of  various  persons  other 
than  plaintiff,  and  which  said  merchandise  he  has  agreed 
should  be  conveyed  in  said  ship  from  said  Q.  to  said  port  of 
discharge,  for  a  certain  amount  of  hire,  or  freight,  to  be  paid 
him  by  said  parties  respectively  therefor,  amounting  in  the 
whole  to  the  sum  of  dollars.  And  plaintiff  being  de- 
sirous to  procure  said  vessel  and  said  freight  to  be  insured 
for  said  voyage  at  and  from  said  O.  to  said  port  of  discharge, 

namely,  the  said  ship  for  the  sum  of dollars,  valued  at 

dollars,   and  said   freight   for  the  sum  of  dollars, 

valued   at dollars,   against   the   perils   of  the   seas   and 

other  risks  usually  contained  in  marine  policies  of  insurance, 
on  property  of  such  description,  did,  in  writing,  by  letter, 
bearing  date,  etc.,  request  his  agent,  one  J.  E.,  oi  said  O.,  to 
procure  the  same  to  be  insured  on  account  of  plaintiff,  and  to 
have  the  policies  of  insurance  thereon  in  the  name  of  plain- 


600  SUITS    IN    EQUITY. 

tiff,  a  copy  of  which  letter,  marked  "A,"  he  hereto  annexes, 
and  prays  that  the  same  may  be  taken  as  a  part  of  this  his 
bill  of  complaint. 

That  said  J.  E.  afterwards,  on  the day  of  the  same 

,  in  compliance  with  the  request  of  plaintiff,  did,  through 

one  H.  M.,  of  ,  broker,  request  one  A.  M.,  of  the  city 

of ,  and  state  of ,  insurance  broker,  to  procure  said 

insurance  upon  said  ship  and  said  freight,  to  be  made  and 
effected  at  some  proper  and  solvent  insurance  company  in  said 

,  or  in  ,  in  said  state  of  ,  and  did  cause  to  be 

transmitted  to  said  A.  M.,  insurance  broker  as  aforesaid,  a 

copy  of  plaintiff's  said  letter,  bearing  date  the  said ;  and 

thereupon  the  said  A.  M.,  being  unable  to  procure  said  insur- 
ance to  be  made  and  effected   for  a  reasonable  premium   in 

said  ,  did,  in  writing,  authorize  and  request  one  D.  R., 

of  said ,  commission  merchant,  to  cause  said  insurance  to 

be  made  and  effected  by  some  proper  insurance  company  in 

said  ,  which  said  written  request  and  authority  so  given 

by  said  A.  M.  to  said  D.  R.  was  and  is  contained  in  two  cer- 
tain letters  written  by  the  said  A.  M.  to  said  D.  R.,  one  of 
which  letters  bears  date,  etc.,  and  the  other  of  said  letters 
bears  date,  etc. ;  and  plaintiff  hereto  annexes  copies  of  both 
said  letters,  marked  respectively  "B"  and  "C,"  and  prays  that 
the  same  may  be  taken  as  parts  of  this  his  bill  of  complaint. 

That  in  said  letter  of  said  A.  M.,  bearing  date,  the  etc.,  by 
accident  and  mistake  the  said  D.   R.,  was  directed  to  cause 

said  ship  to  be  insured  for  the  sum  of  dollars,  to  be 

valued  at  the  sum  of  dollars,   and   said   freight  to  be 

insured  at  the  sum  of  dollars,  and  to  be  valued  at  the 

sum  of dollars ;  and  in  and  by  said  letter  of  said  A.  M., 

bearing  date  the  said  ,  said  mistake  was  in  part  cor- 
rected, and  said  D.  R.  was  directed  to  insure  said  ship  for  the 

sum  of dollars,  and  to  insure  said  freight  for  the  sum 

of  dollars ;  but  by  accident  and  mistake   the  sum   for 

which  said  ship  and  said  freight  were  to  be  valued  thereon 
was  wholly  omitted. 


BILLS    IN    SPECIAL    CASES.  601 

That  the  said   D.    R.,   after   receiving   said  letters  on   the 
— ,  did  apply  to  the  said  C.  M.  IVIarine  Insurance  Company 


to  make  insurance  upon  said  ship  and  freight  for  plaintiff, 
according  to  the  order  and  request  of  the  said  A.  M.,  and  did 
then  and  there  exhibit  both  said  letters  of  said  A.  M.  to  said 
insurance  company,  with  the  intent  to  inform  said  insurance 
company  as  well  of  the  relation  of  said  A.  M.  as  agent  of  the 
owners  of  the  said  ship  as  to  enable  them  to  determine  the 
character  of  the  risk  to  be  insured,  and  said  insurance  com- 
pany did  afterwards  read  and  examine  said  letters,  and  on 
the  same  day  did  agree  with  the  said  D.  R.,  acting  as  agent 
of  plaintiff,  to  insure  the  said  ship  on  the  voyage  aforesaid, 

at  and  from  said  Q.,  for  the  sum  of dollars,  to  be  valued 

at  the  sum  of dollars,  and  to  insure  the  said  freight  of 

said  ship  on  said  voyage  for  the  sum  of  dollars,  to  be 

valued  at  the  sum  of dollars,  and  to  receive  as  premiums 

therefor  the  sum  of dollars. 

Thereafter,  on  the,  etc.,  ,  the  said  insurance  company, 

with  the  intent  and  design  to  carry  into  effect  said  agree- 
ment, did  cause  to  be  made  in  writing,  or  policy,  of  insurance, 
signed  by  the  president  and  secretary,  bearing  date,  etc.,  a 
copy  of  which  is  hereto  annexed,  and  marked  "D,"  which 
plaintiff  prays  may  be  taken  as  part  of  this  his  bill  of  com- 
plaint, and  did  deliver  said  policy  to  said  D.  R.,  the  agent  of 
plaintiff  as  aforesaid,  and  did  receive  from  said  D.   R.,   the 

agent  of  plaintiff,  said  premium  of  dollars,  which  sum 

was  thereafterwards  by  plaintiff  repaid  to  said  D.  R. 

That  although,  when  said  insurance  company  had  so  agreed 
to  insure  said  ship  and  freight  for  the  amounts  aforesaid,  it 
was  well  known  to  said  insurance  company  that  said  A.  M. 
was  merely  the  agent  of  the  owner  of  said  ship  and  of  the 
person  entitled  to,  and  solely  interested  in,  said  freight;  and 
that  he,  said  A.  M.,  had  no  insurable  interest  i>r  other  interest 
whatever  in  either  said  ship  or  said  freight,  and  that  said 
A.  M.  was,  by  profession  and  pursuit,  a  mere  insurance 
broker,  and  that  he  was  acting  as  the  agent  of  the  person  who 


602  SUITS    IN    EQUITY. 

owned  said  ship  and  who  was  solely  interested  in  said  freight, 
and  yet  by  accident  and  mistake  said  insurance  on  said  ship 
and  said  freight  was,  by  the  terms  of  said  policy,  etc.,  de- 
clared to  be  on  account  of  said  A.  M.,  and  without  adding 
thereto  the  word  agent  or  any  other  term  indicating  that  he, 
the  said  A.  M.,  was  insured  as  said  agent  of  the  party  own- 
ing said  ship  and  interested  in  said  freight,  and  without  the 
usual  clause,  commonly  inserted  in  such  policies,  that  said  in- 
surance was  effected  for  whom  it  might  concern. 

That  said  insurance  company  knew,  and  was  distinctly  in- 
formed by  said  D.  R.  by  said  letter  of  said  A.  M.  to  said 
D.  R.,  bearing  date,  etc.,  and  submitted  to  and  read  by  them 
as  aforesaid,  that  said  A.  M.  was  the  mere  agent  of  and 
broker  for  the  owner  of  said  ship,  and  had  no  interest  what- 
ever in  said  ship  or  freight,  except  so  far  as  he  would  be 
entitled  to  the  usual  commission  of  a  broker  for  procuring 
said  insurance;  and  the  said  insurance  company  did  agree, 
consent  and  understand  at  the  time  said  agreement  to  insure 
said  ship  and  freight  was  made  wMth  said  D.  R.,  and  before 
said  policy  so  made  to  carry  said  agreement  into  effect  was 
written  and  signed,  that  said  insurance  was  to  be  made  for 
the  benefit  and  on  account  of  the  owner  of  said  ship ;  and  that 
said  A.  M.  was  not  the  owner  of  said  ship  nor  interested 
therein  or  in  said  freight,  and  that  by  mere  inadvertence, 
accident  and  mistake  in  writing  said  policy  of  insurance  it 
was  omitted  to  be  inserted  in  said  policy  that  said  insurance 
was  made  on  account  of  said  A.  M.  as  agent  and  for  whom 
it  might  concern. 

That  said  policy  was  received  by  the  said  D.  R.  and  trans- 
mitted to  the  said  J.  E.,  the  agent  of  plaintiff,  and  by  him 
kept  and  retained  in  ignorance  that  by  the  terms  and  legal 
effect  thereof  no  other  interest  was  insured  thereby  save  that 
of  the  said  A.  M.,  and  in  the  full  understanding  as  well  by 
said  A.  M.,  said  D.  R.  and  said  J.  E.,  that  the  interest  of 
plaintiff  in  said  ship  and  freight,  to  the  extent  cf  the  sums 
named  in  said  policy,  was  thereby  insured  and  protected,  in 


BILLS    IN    SPECIAL    CASES.  603 

accordance  with  plaintiff's  directions  contained  in  his  said 
letter  to  said  J.  E.,  bearing  date  the  said,  etc. 

And  plaintiff  further  shows,  etc.  [Here  state  the  loss  of, 
etc.] 

Plaintiff  submits  to  your  honors  that,  by  reason  of  the 
premises,  he  is  justly  and  equitably  entitled  to  have' said  mis- 
take so  made  in  drawnng  said  policy  of  insurance  corrected, 
and  said  policy  reformed  by  inserting  therein  that  said  insur- 
ance was  made  on  account  of  A.  M.  as  agent,  or  for  whom  it 
may  concern ;  and  that  the  sums  so  insured  by  said  company 
on  said  ship  and  said  freight  be  paid  to  him  accordingly. 

Plaintiff  further  shows  that  previously   to   this   suit  being 

commenced,  on  the day  of  ,  and  since,  he  applied 

to  and  requested,  and  caused  application  to  be  made  to,  said 
insurance  company,  to  act  towards  plaintiff  in  such  a  way  as 
is  equitable  and  just,  and  to  reform  said  policy  as  aforesaid, 
and  to  adjust  and  pay  to  him  the  sums  so  insured  by  them  on 
said  ship  and  said  freight,  and  so  lost  to  plaintiff  as  aforesaid 
by  reason  of  the  perils  insured  against  in  said  policy,  and  ex- 
hibited to  said  insurance  company  the  usual  and  proper  proofs 
of  said  agency  of  said  A.  M.,  and  of  said  loss,  and  of  his  sole 
ownership  of  said  ship  and  sole  interest  in  said  freight  at  the 
time  of  said  agreement  so  made  with  the  agent  of  plaintiff  by 
said  insurance  company  to  insure  the  same  as  aforesaid,  and 
plaintiff  well  hoped  that  said  insurance  company  would  have 
yielded  to  his  said  applications  and  paid  to  him  the  sums  so 
insured  by  them  and  lost  by  him  as  aforesaid.    [Pray  relief.] 


No.  449. 

To  Cancel  Decree  of  Naturalization.  (1) 

[Caption.] 

The  United  States,  by  W.  H.,  their  attorney  general,  and 

J.    H.,   the  United   States  attorney  for  the  district   of 

,  bring  this  their  bill  against  C.  D.,  a  resident  of  the  city 

of ,  in  the  district  aforesaid,  and  an  alien  and  subject  of 

the of . 


604  SUITS    IN    EQUITY. 

And    thereupon    plaintiffs    complain    and    say    that    on    or 

about  the  day  of  ,   18 — ,  the  said  defendant,  who 

was  and  now  is  an  alien  and  subject  of  the of  , 

appeared  in  the court,  it  then  being  a  court  of  record  of 

the  state  of  ,  purporting  to  have  common-law  jurisdic- 
tion, and 'a  seal  and  clerk,  and  at  a  term  and  session  thereof 

then  being  holden   in   the  city   of  ,   within  the  district 

aforesaid,  and  applied  to  be  admitted  a  citizen  of  the  United 
States. 

That  thereupon  said  court,  on  the  day  and  year  last  afore- 
said, entered  up  a  decree  purporting  to  admit  said  defendant 
to  be  and  become  a  citizen  of  the  United  States,  under  the 
provision  of  Section  2167  of  the  Revised  Statutes  of  the 
United  States,  in  and  by  which  decree  it  is  recited,  among 
other  things,  that  said  defendant  had  proven  to  the  satisfac- 
tion of  the  court,  by  the  testimony  of  one  S.  T.,  that  he  had 
arrived  in  the  United  States  a  minor  under  the  age  of  eigh- 
teen years;  that  he  had  resided  in  the  United  States  at  least 
five  years,  including  the  three  years  of  his  minority,  and  in 

the  state  of at  least  one  year  immediately  preceding  his 

said  application,  and  that  for  three  years  prior  thereto  it  had 
been  bona  fide  his  intention  to  become  a  citizen  of  the  United 
States.  That  thereupon  a  certain  copy  of  said  decree  as  afore- 
said was  delivered  to  said  defendant,  who  ever  since  has 
claimed,  by  virtue  of  said  pretended  decree,  and  not  other- 
wise, to  be  a  duly  naturalized  citizen  of  the  United  States, 
and  now  claims  that  by  virtue  of  said  proceedings  he  is  such 
citizen,  and  as  such  is  entitled  to  all  the  rights,  privileges  and 
franchises  of  a  citizen  of  the  United  States,  and  claims  to  be 
entitled  to  the  protection  of  the  United  States  as  a  citizen 
thereof. 

Plaintiffs  state  and  charge  that  it  is  not  true  that  the  said 
defendant  was  a  minor  under  the  age  of  eighteen  years  when 
he  arrived  in  the  United  States;  it  is  not,  nor  was  it  then, 
true  that  he  had  resided  in  the  United  States  for  three  years 
next  preceding  his  arriving  at  the  age  of  twenty-one  years; 


BILLS    IN    SPECIAL    CASES.  605' 

it  is  not,  nor  was  it  then,  true  that  he  had  resided  in  the 
United  States  at  least  five  years,  including  the  three  years  of 
his  minority;  it  is  not,  nor  was  it  then,  true  that  it  had  been 
bona  fide  his  intention,  for  two  years  next  preceding  the  date 
of  his  application,  to  become  a  citizen  of  the  United  States. 

That  the  decree  aforesaid  was  obtained  by  defendant  from 
the  court  aforesaid  by  fraud  and  perjury,  willfully  and  know- 
ingly committed  at  and  before  the  court  aforesaid,  which 
fraud  and  perjury  was  and  is  that  the  defendant  introduced 
witnesses  for  the  purpose  of  obtaining  the  said  decree,  who, 
having  been  duly  sworn,  willfully  testified  falsely  in  substance 
and  to  the  effect  following,  to-wit,  that  said  defendant  was 
under  the  age  of  eighteen  years  when  he  arrived  in  the  United 
States,  and  that  he  had  resided  in  the  United  States  three 
years  next  preceding  his  arrival  at  the  age  of  twenty-one 
years,  whereas,  as  the  said  defendant  and  said  witnesses  well 
knew,  such  were  not  the  facts,  nor  were  any  of  such  facts 
known  to  any  of  said  witnesses. 

That  the  facts  aforesaid,  as  to  the  qualifications  of  defend- 
ant, were  not  proven  or  made  to  appear  to  the  satisfaction  of 
the  court  aforesaid  by  the  testimony  of  any  witness  who  had 
any  knowledge  thereof,  nor  in  any  lawful  manner,  nor  by 
any  competent  or  lawful  testimony  whatsoever,  and  that  said 
decree  was  based  upon  the  fraudulent  and  false  testimony 
aforesaid,  and  said  court  was  induced  to  render  it  by  and 
through  mistake  as  to  the  true  facts,  as  well  as  by  the  fraud 
and  perjury  aforesaid,  and  the  imposition  practiced  upon  it  by 
said  defendant. 

That  said  defendant  did  then  and  there,  on  the  hearing  of 
his  said  application,  make  and  cause  to  be  made,  in.  to  and 
before  said  last-named  court,  with  the  intent  to  procure  and 
to  aid  in  procuring  his  naturalization  as  aforesaid,  and  the 
issue  of  the  certificate  of  citizenship  to  him,  a  false  statement, 
which  was  and  is  that  the  said  defendant,  at  the  time  he 
arrived  in  the  United  States,  was  under  the  age  of  eighteen 
years,  and  had  resided  in  the  United  States  three  years  next 


606  SUITS    IN    EQUITY. 

preceding  his  arrival  at  the  age  of  twenty-one  years ;  vvherea*? 
in  truth  and  in  fact,  as  the  said  defendant  then  and  there  well 
knew,  he  was  not,  at  the  time  he  arrived  in  the  United  States, 
under  the  age  of  eighteen  years,  and  had  not  resided  in  the 
United  States  three  years  next  preceding  his  arrival  at  the 
age  of  twenty-one  years. 

That  for  the  purpose  of  obtaining  said  decree  said  defend- 
ant did  then  and  there,  on  the  hearing  of  said  application, 
commit  a  fraud  upon  the  plaintiffs  and  said  court  by  then  and 
there  intentionally  and  knowingly  concealing  from  said  last- 
named  court  the  facts  that  at  the  time  he  arrived  in  the  United 
States  he  was  over  the  age  of  eighteen  years,  and  had  not 
resided  therein  three  years  next  preceding  his  arrival  at  the 
age  of  twenty-one  years,  and  by  then  ^nd  there  intentionally 
and  knowingly  failing  and  refusing  to  make  known  to  said 
last-named  court  the  facts  that  at  the  time  he  arrived  in  the 
United  States  he  was  over  the  age  of  eighteen  years,  and  had 
not  resided  therein  three  years  next  preceding  his  arrival  at 
the  age  of  twenty-one  years,  and  by  then  and  there  falsely 
pretending  in,  to  and  before  said  last-named  court  that  at  the 
time  he  arrived  in  the  United  States  he  was  under  the  age  of 
eighteen  years,  and  had  resided  therein  three  years  next  pre- 
ceding his  arrival  at  the  age  of  twenty-one  years,  and  was 
then  and  there  entitled  to  be  admitted  to  become  a  citizen  of 
the  United  States. 

That  the  United  States  had  no  notice  of  the  said  applica- 
tion of  said  defendant  nor  of  the  hearing  thereof,  and  were 
not  represented  thereat,  and  had  no  opportunity  to  contest 
the  false  and  fraudulent  claim  of  the  defendant,  but  that  the 
proceeding  was  entirely  ex  parte  and  not  contested,  by  reason 
whereof  the  real  facts  in  the  matter  was  not  presented  to  nor 
were  they  before  the  said  last-named  court  on  said  hearing, 
and  said  court  was  imposed  upon  and  induced  by  said  false 
testimony  oflfered  by  defendant,  and  mistake  as  to  the  real 
facts,  and  the  aforesaid  false  and  fraudulent  pretenses  and 
claims  made  by  him  and  on  his  behalf,  and  suppression  of  the 


BILLS    IN    SPECIAL    CASES.  607 

facts  as  aforesaid  and  by  mistake  of  the  facts,  to  then  and 
there  enter  the  decree  aforesaid  admitting  said  defendant  to 
be  a  citizen  of  the  United  States  under  said  appHcation,  the 
said  defendant  not  being  then  and  there  entitled  to  be  ad- 
mitted to  become  such  citizen  either  under  such  appHcation 
or  otherwise. 

That  at  the  time  when  he  obtained  said  decree  the  defend- 
ant had  not,  as  he  well  knew,  at  least  two  years  prior  to  his 
pretended  admission,  made  the  declaration  required  by  the 
first  subdivision  of  Section  2165  of  the  Revised  Statutes  of 
the  United  States,  nor  did  he  come  within  any  of  the  excep)- 
tions  or  other  provisions  of  the  statutes  of  the  United  States 
entitling  him  to  said  decree.  To  the  contrary,  plaintiffs  charge 
that  said  defendant  procured  said  decree,  contriving  and  con- 
niving to  work  a  fraud  upon  the  United  States  and  upon  the 
court  by  which  the  decree  was  granted,  and  that  defendant 
accepted  it,  and  still  claims  the  benefits  thereof,  well  knowing 
that  he  was  not  then  and  is  not  now  entitled  to  it.  or  to  the 
benefits  thereof,  and  that  the  court  had  been  imposed  upon, 
and  had  been  induced  to  issue  it  through  mistake  of  the  true 
facts  as  aforesaid,  and  through  the  fraud  and  imposition  prac- 
ticed upon  it  as  aforesaid. 

That  the  said  pretended  decree  of  naturalization  was  pro- 
cured, as  defendant  well  knew  at  the  time  he  procured  and 
accepted  the  same,  without  any  compliance  with  the  laws  of 
the  United  States,  and  in  fraud  thereof,  and  plaintiffs  aver 
and  charge  that  the  existence  of  the  fraudulent  decree  on  its 
face  entitled  the  defendant  to  exercise  the  rights  of  a  citizen 
of  the  United  States,  and  to  claim  their  protection,  whereto 
he  is  not  entitled,  and  if  the  same  remains  uncancelled  and  in 
force,  it  can  be  used  in  fraud  of  the  U'^nited  States,  and  of 
persons  relying  thereon  as  a  valid  decree. 

Plaintiffs  therefore  pray  that  the  decree  of  naturalization 
aforesaid  be  declared  null  and  void ;  that  the  said  defendant 
be  required  to  surrender  up  the  certified  copy  thereof  deliv- 
ered to  him;  that  he  be  forever  restrained  and  enjoined  from 


608  SUITS    IN    EQUITY. 

setting  up  or  claiming  any  rights,  privileges,  benefits  or  ad- 
vantages whatsoever  under  said  decree;  and  that  plaintiffs 
shall  have,  generally,  such  other  and  further  relief  as  the 
circumstances  and  nature  of  the  case  may  require. 

W.  H., 
Attorney  General. 

J.  H., 
U.  S.  Atty. Dist.  of, . 

R.  X., 

Of  Counsel  for  Plaintiff. 

(1)  U.  S.  V.  Norsch,  42  Fed.  417. 

34  Stat.  L.  601,  June  29,  1^06  (6  Fed.  Stat.  Ann.,  2d  ed.,  pp.  987  et  seq.), 
authorize  cancellation  on  the  ground  of  fraud  or  illegal  procurement ;  the 
United  States  district  attorneys  are  given  the  duty  of  instituting  pro- 
ceedings, in  any  court  having  jurisdiction  to  naturalize  and  in  the  district 
in  which  the  naturalized  person  resides. 

The  constitutionality  of  this  statute  has  been  upheld  in  Johannesen  v. 
U.  S.,  225  i;.  S.  227,  56  L.  Ed.  1066,  and  in  Luria  v.  U.  S.,  231  U.  S.  9, 
58  L.  Ed.  101. 

The  remedy  of  this  statute  is  cumulative,  In  re  Macoluso's  Naturaliza- 
tion, 237  Pa.  St.  13(2. 

The  cancellation  decree  may  be  by  a  federal  court  although  the  naturali- 
zation certificate  was  awarded  by  a  state  court.  U.  S.  v.  Griminger,  236  Fed. 
285;  U.  S.  v.  Plaistow,  189  Fed.  1006;  and  a  state  court  may  cancel 
naturalization  awarded  by  a  federal  court.    U.  S.  v.  Aakervik,  180  Fed.  137. 

The  remedy  granted  by  this  statute  is  essentially  equitable.  Luria  v. 
U.  S.,  231  U.  S.  9,  58  L.  Ed.  101 ;  U.  S.  v.  Mansour,  170  Fed.  671. 

For  a  discussion  of  grounds  of  cancellation  see  U.  S.  v.  Olsson,  196  Fed. 
562,  where  advocating  doctrines  subversive  of  constitutional  government 
constituted  the  charge. 


No.  450. 

For  Specific  Performance  of  a  Lease. 

[Caption.] 

The  plaintiff,  the  Philadelphia  &  Reading  Coal  &  Iron 
Company,  brings  this  its  bill  against  the  above-named  defend- 
ant. Great  Northern  Railway  Company,  and  thereupon  com- 
plains and  alleges  as  follows : 

1.  That  at  all  times  hereinafter  and  in  this  bill  mentioned, 
plaintiff  was,  and  at  the  commencement  hereof  is,  a  corpora- 


BILLS    IN    SPECIAL    CASES.  609 

tion  duly  organized,  created  and  existing  under  and  by  virtue 
of  the  laws  of  the  state  of  Pennsylvania,  and  was,  and  at  the 
commencement  hereof  is,  a  citizen  of  said  last-named  state. 
That  the  defendant,  Great  Northern  Railway  Company,  was, 
at  the  several  times  hereinafter  mentioned,  and  at  the  com- 
mencement hereof  is,  a  corporation  duly  organized,  created 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
Minnesota,  and  was,  and  is,  at  the  commencement  hereof,  a 
citizen  of  said  last-named  state.  That  at  all  the  several  times 
hereinafter  mentioned  the  Silver  Creek  &  Morris  Coal  Com- 
pany was  a  corporation  duly  organized,  created  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of  Illinois.  That 
at  all  times  hereinafter  mentioned  the  Eastern  Railway  Com- 
pany of  Minnesota  was  a  corporation  duly  created,  organized 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
Minnesota.  That  the  amount  in  controversy  exceeds  the  sum 
or  value  of  three  thousand  dollars  ($3,000),  exclusive  of 
interest  and  costs. 

2.  That  heretofore  and  on  or  about  the  1st  day  of  Feb- 
ruary, 1890,  the  above-mentioned  Eastern  Railway  Company 
of  Minnesota,  by  a  certain  indenture  of  lease  of  the  date  last 
mentioned,  as  lessor,  demised,  leased  and  let  unto  the  above- 
mentioned  Silver  Creek  &  Morris  Coal  Company  and  the 
last-named  company  hired  and  took  from  said  lessor  certain 
premises  then  owned  by  said  lessor  situated,  lying  and  being 
within  the  city  of  West  Superior,  Douglas  county,  Wisconsin, 
said  premises  being  designated  in  such  indentui"e  of  lease  and 
commonly  known  ,and  described  as  Dock  Number  Six  (6), 
except  a  certain  portion  thereof  then  leased  to  the  Jones  & 
Adams  Company. 

3.  That  in  and  by  the  terms  of  said  lease  it  was  provided 
that  the  said  lessee  should  have  the  use  and  possession  of 
said  leased  premises  for  and  during  the  term  of  ten  (10) 
years  from  and  after  the  1st  day  of  May,  1890,  upon  and  sub- 
ject to  certain  conditions  therein  expressed,  including  the  pay- 
ment of  the  therein  stipulated  monthly  rental  of  three  hun- 


610  SUITS    IN    EQUITY. 

dred  (300)  dollars  for  the  first  five  (5)  years  of  said  term 
and  three  hundred  and  fifty  (350)  dollars  for  t-he  remainder 
of  said  term.  That  it  was  further  stipulated  in  and  by  the 
terms  of  said  lease,  and  the  said  lessor  therein  covenanted, 
that  at  the  option  of  the  lessee  the  term  thereof  should,  at  the 
expiration  thereof,  be  renewed  on  like  terms  and  conditions 
except  as  to  rental,  stipulated  in  the  event  of  such  renewal  to 
be  four  hundred  (400)  dollars  monthly  for  the  entire  ex- 
tended term. 

4.  That  it  was  further  provided  and  stipulated  in  and  by 
the  terms  of  said  lease  that  the  said  lessee  should  have  the 
privilege  to  erect  upon  the  demised  premises,  and  thereafter 
to  maintain,  repair,  renew  and  operate  while  said  lease  con- 
tinued in  force,  all  suitable  machinery,  fixtures  and  apparatus 
for  the  handling  of  coal  as  had  been  theretofore  agreed  be- 
tween the  parties  or  should  be  thereafter  agreed  from  time  to 
time  during  the  term  for  which  said  premises  were  leased. 

5.  That  said  lease  contained  amongst  other  provisions  and 
conditions  the  following : 

Said  railway  company  covenants  and  agrees  that  upon  the 
expiration  of  the  lease  hereunder,  without  default  or  breach 
on  the  part  of  the  lessee,  it  will  take  all  the  machinery  and 
apparatus  on  the  premises  demised,  established  and  operated 
thereon  from  time  to  time  with  its  approval  and  consent,  and 
within  thirty  days  thereafter  pay  said  coal  company  therefor 
on  the  basis  of  a  fairly  appraised  valuation,  which,  if  it  can 
not  be  agreed  upon  between  the  parties  hereto,  shall  be  deter- 
mined by  an  arbitrator,  if  one  can  be  promptly  agreed  upon. 
or  otherwise  by  three  competent  and  disinterested  arbitrators, 
selected  in  the  customary  manner,  whose  decision  shall  be 
conclusive  and  binding;  provided,  that  the  foregoing  covenant 
shall  not  be  binding  upon  said  railway  company  unless  said 
coal  company  shall  have  given  said  railway  company  notice  in 
writing  not  less  than  six  months,  nor  more  than  one  year, 
before  said  expiration,  of  its  desire  that  said  railway  company 
should   so   take    said   machinery   and    apparatus.      And    it    is 


BILLS    IN    SPECIAL    CASES.  611 

agreed  that  after  such  notice  said  railway  company  shall  have 
a  right  to  take  said  machinery  and  apparatus  on  the  terms 
above  set  forth. 

6.  That  thereafter  and  on  or  about  the  1st  day  of  May, 
1890,  the  aforesaid  lessee  entered  into  and  took  possession  of 
the  said  demised  premises  under  the  terms  of  said  lease  and 
thereafter  continued  in  the  use  and  possession  thereof  for  the 
purposes  and  in  accordance  with  the  terms  of  said  lease  up  to 
on  or  about  the  15th  day  of  March,  1892.  That  during  the 
period  of  such  occupancy,  said  lessee,  in  accordance  with  the 
provisions  thereof,  erected,  constructed  and  maintained  there-- 
on  various  apparatus,  fixtures  and  machinery  adapted  and 
used  for  the  handling  and  conduct  of  the  business  for  which 
said  premises  were  leased. 

7.  That  on  or  about  the  I5th  day  of  March,  1892,  the  said 
Silver  Creek  &  Morris  Coal  Company,  being  then  in  posses- 
sion of  said  leased  premises  as  aforesaid,  and  said  lease  being 
then  in  force  according  to  its  terms,  by  instrument  in  writing 
duly  assented  to  by  the  above-mentioned  lessor,  assigned  and 
transferred  all  its  right,  title  and  interest  in  said  lease  and  the 
premises  thereby  covered  to  plaintiff.  And,  at  the  time  of 
such  assignment,  sold  and  delivered  to  plaintiff  all  and  several 
the  apparatus,  machinery,  fixtures,  etc.,  theretofore  by  it,  said 
lessee,  erected,  constructed  or  maintained  on  said  dock.  That 
plaintiff  thereupon  entered  into  and  took  possession  of  said 
premises  and  other  property  hereinbefore  referred  to  on  or 
about  the  date  of  the  assignment  last  hereinbefore  mentioned 
and  thereafter  continued  to  possess  and  use  said  premises  as 
hereinafter  alleged. 

8.  That  on  or  about  the  24th  day  of  July,  1894,  a  certain 
agreement  in  writing  was  duly  and  regularly  entered  into  be- 
tween the  said  Eastern  Railway  Company  of  Minnesota  and 
plaintiff,  which  said  agreement,  after  reciting  the  terms  of  the 
lease  aforesaid,  the  assignment  of  such  lease  to  plaintiff  and 
the  continued  possession  of  plaintiff  of  said  leased  premises, 
provided  and  stipulated  for  the  enlargement  and  extension  of 


612  SUITS    IN    EQUITY. 

said  dock,  such  extension  to  constitute  a  part  and  portion  of 
the  originally  demised  premises  and  to  be  used  in  connection 
with  the  latter  by  plaintiff  under  all  the  terms  and  provisions 
contained  in  said  original  lease,  except  that  in  consideration 
of  the  extension  of  said  dock  plaintiff  was  to  pay  in  addition 
to  the  originally  stipulated  rental  provided  by  the  terms  of 
said  original  lease  the  additional  sum  of  one  hundred  (100) 
dollars  per  month  for  and  during  the  remainder  of  said  origi- 
nal term.  That  the  conditions  of  said  agreement  last  herein 
mentioned  were  carried  out  and  plaintiff  thereafter  continued 
in  possession  of  said  premises,  including  those  originally 
leased  and  the  extension  last  hereinbefore  mentioned  and 
hereinafter  alleged. 

9.  That  on  or  about  the  22d  day  of  November,  1897,  a 
further  agreement  was  duly  made  and  entered  into  in  writing 
between  the  said  Eastern  Railway  Company  of  Minnesota 
and  plaintiff,  dated  on  the  date  last  mentioned,  which  said 
agreement,  after  reciting  the  original  lease  hereinbefore  al- 
leged, the  agreement  for  the  enlargement  and  extension  of 
said  leased  premises  with  the  increased  rental,  further  recited 
that  the  said  Eastern  Railway  Company  of  Minnesota  had 
constructed  a  further  extension  of  said  dock  which  it  was  the 
desire  of  plaintiff  to  use  and  for  which  plaintiff  had  agreed 
and  proposed  to  pay  an  additional  rental  of  three  hundred 
and  fifty  (350)  dollars  a  month.  That  in  and  by  the  terms  of 
said  agreement  last  mentioned  it  was  duly  and  legally  stipu- 
lated between  the  parties  that  plaintiff  should  have  the  use  of 
such  extension  for  and  during  the  remainder  of  the  term  for 
which  said  original  lease  was  made  in  consideration  of  the 
payment  of  the  increased  monthly  rental  of  three  hundred  and 
fifty  (350)  dollars  a  month.  It  was  further  provided  that  the 
option  reserved  by  said  original  lease  for  the  extension  of  the 
term  thereof  should  be  held  to  cover  and  embrace  the  addi- 
tions to  said  leased  premises  provided  in  the  agreement  under 
date  of  July  24,  1894,  as  well  as  the  addition  therein  em- 
braced and  mentioned,  on  condition  of  the  payment  of  an  in- 


BILLS    IN    SPECIAL    CASES.  613 

creased  rental  for  such  extended  term  as  herein  provided  and 
expressed.  And  it  was  further  provided  in  and  by  the  terms 
of  said  written  agreement  of  November  22,  1897,  that  the 
said  original  lease  of  February  1.  1890,  and  the  said  lease  of 
July  24,  1894,  should  be  construed  in  all  respects  as  thereby 
confirmed,  and  that  plaintifif  should  have  all  the  rights  there- 
under conferred  upon  the  said  original  lessee,  the  Silver  Creek 
&  ]\Iorris  Coal  Company. 

10.  That  plaintiff  continues  to  hold,  use  and  enjoy  under 
the  terms  of  the  aforesaid  several  contracts  of  lease  all  of  the 
premises  with  the  extensions  and  enlargements  thereof  as 
hereinbefore  recited  and  during  the  period  as  next  hereinafter 
alleged.  That  at  or  about  the  date  of  expiration  of  the  term 
of  said  original  lease,  plaintiff  duly  and  regularly  exercised 
the  option  therein  and  thereby  reserved  and  confirmed  by  said 
supplemental  agreements  as  hereinbefore  alleged,  for  the  ex- 
tension of  the  term  of  said  original  lease  for  the  period  of 
ten  (10)  years  from  and  after  the  1st  of  May,  1890,  and  that 
thereupon  said  term  was  duly,  regularly  and  legally  extended 
as  to  all  of  said  demised  premises  covered  by  said  original 
and  supplemental  leases  for  the  period  last  above  mentioned. 
That  on  or  about  April  4,  1910,  said  lease  still  being  in  force 
and  effect  and  plaintiff  being  in  possession  under  the  terms 
thereof  and  under  the  terms  of  supplemental  agreements  afore- 
said, said  term  was  again  extended  by  agreements  of  the  par- 
ties for  a  period  of  sixty  (60)  days  from  May  1,  1910. 

11.  That  on  or  about  the  1st  day  of  November,  1907,  the 
above-named  defendant,  Great  Northern  Railway  Company, 
succeeded  to  all  the  rights  and  interest  of  the  said  Eastern 
Railway  Company  of  iMinnesota  in  said  above  described 
leased  premises,  and  thereupon  and  thereafter  during  the  con- 
tinuance of  said  term,  the  defendant  received  all  rentals  from 
plaintiff  under  said  lease  and  assumed  the  performance  of  all 
the  conditions  and  covenants  therein  and  thereby  imposed 
upon  its  said  predecessor,  the  Eastern  Railway  Company  of 
Minnesota. 


614  SUITS    IN    EQUITY. 

12.  That  during  the  period  of  its  occupancy  of  said  prem- 
ises, plaintiff,  by  and  with  the  consent  of  the  defendant  and 
its  predecessor,  erected,  constructed  and  maintained  on  said 
leased  premises  various  machinery  and  apparatus  for  the  con- 
duct and  carrying  on  of  its  business  on  such  dock,  for  the 
conduct  and  carrying  on  whereof  the  same  was  leased  as 
aforesaid ;  all  whereof  continued  to  be  and  remain  on  said 
dock  at  the  date  of  expiration  of  the  term  of  said  lease,  as 
extended,  as  aforesaid. 

13.  That  prior  to  the  expiration  of  sa-id  term  and  while 
said  leased  premises  continued  in  the  possession  of  plaintiff 
as  aforesaid,  certain  negotiations  were  had  between  plaintiff 
and  the  said  defendant  looking  to  the  purchase  by  the  defend- 
ant of  such  machinery  and  apparatus.  That  it  was  then  and 
there  agreed  between  plaintiff  and  defendant  that  all  said 
machinery  and  apparatus  should  be  taken  by  defendant  and 
that  the  terms  of  said  original  lease,  providing  for  such  taking 
should  be  held  and  construed  as  in  force  and  effect.  That  it 
was  further  agreed  between  plaintiff  and  said  defendant  that 
there  should  be  no  abandonment  of  any  rights  upon  the  part 
of  plaintiff  of  said  machinery  and  apparatus  by  the  failure  of 
removal  thereof  by  plaintiff  before  the  expiration  of  the  term 
of  said  lease  and  that  all  thereof  should  remain  upon  said 
premises  notwithstanding  the  expiration  of  said  term,  subject 
to  the  further  negotiations  between  the  parties  concerning  the 
amount  which  defendant  should  pay  and  account  for  to  com- 
plainant by  reason  of  the  taking  of  said  machinery  and  ap- 
paratus. 

14.  That  pursuant  to  said  understanding  and  agreement 
last  hereinbefore  mentioned,  all  of  said  machinery  and  ap- 
paratus erected,  constructed  and  maintained  on  said  dock  as 
aforesaid  by  plaintiff  was,  at  the  expiration  of  said  term,  left 
by  plaintiff  on  said  dock,  and  by  consent  of  the  said  defend- 
ant, plaintiff  remained  in  possession  thereof,  maintaining  and 
paying  the  compensation  of  a  watchman  for  said  dock  and 
other  property  thereon  existing,  down  to  the  time  next  here- 


BILLS    IX    SPECIAL    CASES.  615 

inafter  mentioned.  That  heretofore  and  prior  to  the  filing-  of 
this  bill  and  while  plaintiff  remained  in  possession  of  said 
property  in  the  manner  and  under  the  circumstances  as  last 
hereinbefore  alleged,  it  was  mutually  agreed  between  plaintiff 
and  this  defendant  that  in  consideration  of  the  surrender  by 
plaintiff  of  possession  of  said  premises  without  the  removal 
or  disturbance  of  said  machinery  and  apparatus  thereon  con- 
structed, that  such  surrender  should  be  without  prejudice  to 
the  rights  of  plaintiff  in  respect  to  such  property  and  that  the 
value  thereof  should  be  determined  or  appraised  and  paid  by 
the  defendant  in  accordance  with  the  terms  and  stipulations 
of  said  above  described  original  lease,  and  in  the  event  that 
said  arbitration,  as  provided  by  the  terms  of  said  original 
lease,  should  for  any  reason  prove  abortive  or  be  abandoned 
by  the  parties,  then  and  in  that  event  that  the  defendant 
should  and  would  account  to  plaintiff  for  the  value  of  said 
machinery  and  apparatus  in  an  appropriate  proceeding  for 
such  accounting  and  to  determine  the  value  thereof,  and  that 
plaintiff  should  be  entitled  to  recover  against  the  defendant 
such  amount  as  should  be  decreed  as  a  result  of  such  account- 
ing and  that  the  same  should  be  and  constitute  a  lien  upon 
said  leased  premises. 

15.  Thereupon  and  pursuant  to  such  agreement  as  last 
aforesaid  and  not  otherwise,  plaintiff  surrendered  possession 
of  said  premises  and  additional  property  hereinbefore  men- 
tioned. That  following  the  date  of  such  surrender  and  pur- 
suant of  the  terms  of  the  agreement  hereinbefore  recited,  pro- 
ceedings w^ere  had  between  the  parties  looking  to  the  arbitra- 
tion of  the  value  of  said  property  as  provided  by  the  terms 
of  said  original  lease.  That  the  arbitrators  originally  selected 
by  plaintiff  and  defendant  were  unable  to  agree  on  the  value 
of  said  property  and  were  unable  to  agree  upon  or  designate 
a  third  arbitrator  as  provided  by  the  terms  of  said  lease  and 
thereupon  and  prior  to  the  filing  of  this  bill,  it  was  mutually 
agreed  between  the  parties  in  accordance  with  the  previous 
agreement   hereinbefore   alleged   that   said   arbitration   should 


616  SUITS    IN    EQUITY. 

be  abandoned.  That  the  defendant  has  not  accounted  to  plain- 
tiff for  the  value  of  said  machinery,  fixtures  and  apparatus 
which  are  of  a  value  of  in  excess  of  thirty  thousand  (30,000) 
dollars. 

Wherefore  and  whereasmuch,  plaintiff  has  no  adequate 
remedy  at  and  by  the  rules  of  common  law  and  can  only  have 
relief  by  the  specific  performance  of  the  terms  of  the  agree- 
ment hereinbefore  recited,  and  to  the  end  that  in  accordance 
with  the  terms  of  such  agreement  the  defendant  may  be  held 
and  adjudged  to  account  for  the  value  of  such  property  and 
that  the  amount  as  thus  adjudged  and  ascertained  by  the 
court  may  be  decreed  to  be  and  constitute  a  lien  on  the  here- 
inbefore described  premises: 

May  it  please  the  court  to  adjudge  and  decree  that  plaintiff 
is  entitled  to  the  specific  performance  of  the  terms  of  the 
agreement  hereinbefore  recited  and  that  the  court  may  take 
an  account  of  the  value  of  the  machinery,  fixtures  and  ap- 
paratus hereinbefore  and  in  this  bill  described  and  that  the 
defendant  be  adjudged  to  pay  the  amount  thus  ascertained 
and  decreed  to  plaintiff  and  that  the  amount  thus  ascertained 
may  be  held  and  decreed  to  constitute  a  lien  on  said  premises 
and  that  plaintiff  may  have  any  other  and  further  relief  con- 
sistent with  equity  and  with  the  facts  hereinbefore  alleged.  ( 1 ) 

M.     H.     BOUTELLE    & 
A.    M.    HiGGINS, 

Solicitors  for  Complainant. 
(1)   Foster's  Fed.  Prac,  5th  ed.,  Sec.  79. 


No.  451. 

For  Cancellation  of  Land  Patent.  (1) 

[Caption.] 

The  United  States  of  America,  by  D.  H.  Linebaugh,  United 
States  attorney  for  the  eastern  district  of  Oklahoma,  by  direc- 
tion of  the  Hon.  James  C.  McReynolds,  attorney  general  of 
the  United  States,  and  by  leave  of  this  honorable  court  first 


BILLS    IN    SPECIAL    CASES.  617 

had,  brings  this  amended  bill  against  Bessie  Wildcat,  a  minor: 
Santa  Watson,  as  guardian  of  Bessie  Wildcat,  a  minor;  Cinda 
Lowe.  Louisa  Fife,  Annie  Wildcat,  Emma  West,  Martha 
Jackson,  a  minor ;  Saber  Jackson,  as  guardian  and  next  friend 
of  Martha  Jackson,  a  minor;  J.  Coody  Johnson.  Aggie 
Marshall,  Phillip  Marshall,  H.  B.  Beeler,  Max  H.  Cohn,  Jack 
Gouge,  Ernest  Gouge,  Mattie  Bruner  (formerly  Mattie  Phil- 
lips). Jennie  Phillips,  Billie  Phillips,  D.  L.  Berryhill,  William 
McCombs  and  Barnossee  Unussee,  each  of  the  said  defend- 
ants being  a  citizen  and  resident  of  the  state  of  Oklahoma 
and  of  the  eastern  judicial  district  thereof,  and  being  within 
the  jurisdiction  of  this  court;  and  against  the  defendant, 
Black  Panther  Oil  &  Gas  Company,  which  is  a  corporation 
organized  and  existing  under  and  by  virtue  of  the  laws  of 
the  state  of  Oklahoma,  and  is  a  citizen  and  inhabitant  of  the 
said  state  and  of  the  eastern  judicial  district  thereof;  and 
thereupon  plaintiff  complains  and  says : 

L  That  the  said  defendants,  Bessie  Wildcat,  a  minor; 
Cinda  Lowe,  Louisa  Fife,  Annie  Wildcat,  Emma  West,  Mar- 
tha Jackson,  a  minor;  Aggie  Marshall,  Phillip  Marshall,  Jack 
Gouge,  Ernest  Gouge,  Mattie  Bruner,  nee  Phillips;  Jennie 
Phillips,  Billie  Phillips,  D.  L.  Berryhill,  William  McCombs 
and  Barnossee  Unussee,  all  and  singular,  claim  to  be,  and 
plaintiff  is  informed  and  believes,  and  therefore  avers  the  fact 
to  be,  that  they  are  the  sole  heirs  at  law  of  Barney  Thlocco, 
deceased  (hereinafter  more  particularly  referred  to),  and  all 
and  singular  they  claim  whatever  right,  title  or  interest  they 
claim  to  have  in  and  to  the  land  hereinafter  described  by 
virtue  of  being  heirs  at  law  of  the  said  Barney  Thlocco,  de- 
ceased. 

IL  Plaintiff  further  shows  that  for  more  than  seventy  years 
past  that  portion  of  the  territory  belonging  to  the  United  States 
known  and  designated  as  the  Indian  Territory  and  now  form- 
ing a  part  of  the  state  of  Oklahoma  and  within  the  eastern 
judicial  district  thereof,  has  been  occupied  by  the  Choctaw, 
Chickasaw,   Cherokee,   Creek  and   Seminole   tribes  or  nation 


618  SUITS    IN    EQUITY. 

of  Indians.  That  said  above-named  tribes  of  Indians  formed 
and  constituted  a  particular  and  distinct  class  of  Indians, 
known  and  designated  as  the  five  civilized  tribes,  as  distin- 
guished from  other  Indians  or  Indian  tribes  within  the  juris- 
diction of  the  United  States  and  under  its  care,  protection  and 
control.  That  in  many  of  the  laws  passed  by  the  Congress  of 
the  United  States  pertaining  to  said  five  tribes  of  Indians  and 
to  their  property  they  are  referred  to  and  designated  as  the  five 
civilized  tribes  of  Indians,  and  that  wherever  so  designated  or 
referred  to,  in  any  of  the  acts  of  Congress,  were  and  are  in- 
cluded within  the  provisions  of  such  acts  in  the  same  manner 
and  with  like  force  and  efifect  as  though  each  of  said  five  tribes 
were  particularly  and  separately  designated  and  named  thereir^. 
That  during  all  of  the  times  mentioned  herein  the  Creek  tribe 
of  Indians  has  maintained  and  still  maintains  tribal  relations 
among  themselves  and  towards  complainant,  and  complainant 
has  at  all  times  mentioned  herein,  in  dealing  with  the  said 
tribes,  recognized  such  tribal  relations.  That  complainant  has 
at  all  times  mentioned  herein  and  still  maintains  an  Indian 
agent  for  said  tribes  of  Indians,  who  has  supervision  and  con- 
trol over  the  tribal  property  belonging  to  said  Creek  tribe  of 
Indians.  That  the  Creek  tribe  of  Indians  still  has  a  large 
amount  of  tribal  property  and  unallotted  lands  belonging  to 
the  members  of  said  tribe  of  Indians  which  is  still  under  the 
control  and  management  of  the  complainant. 

III.  Plaintiff  further  shows  that  under  and  by  virtue  of  the 
existing  treaties  between  complainant  and  the  Creek  tribe  of 
Indians,  and  by  virtue  of  the  several  acts  of  Congress  passed 
in  relation  to  the  affairs  and  property  of  the  five  civilized  tribes 
of  Indians,  the  United  States  government  has  always  and  now 
does  assume  the  relation  of  guardian  and  trustee  of  the  prop- 
erty of  the  Indian  tribes  and  members  thereof,  constituting  the 
five  civilized  tribes.  That  its  political  department  has  always 
declared  and  now  declares  such  relation  to  exist  between  com- 
plainant and  said  tribes  of  Indians,  and  especially  the  Creek 
tribe,  in  so  far  as  the  same  relates  to  the  members  and  property 
of  said  tribes  of  Indians. 


BILLS    IN    SPECIAL    CASES.  619 

That  complaint,  under  and  by  virtue  of  the  provisions  of  an 
act  of  Congress  passed  and  approved  June  28,  1898,  and  by 
virtue  of  the  several  acts  of  Congress  supplemental  thereto  and 
amendatory  thereof,  and  particularly  the  acts  of  Congress 
passed  and  approved  March  1,  1901,  and  June  30,  1902,  as- 
sumed and  undertook  the  duty  of  allotting  in  severalty  to  the 
various  members  and  freedmen  and  enrolled  citizens  and  freed- 
men  of  said  Creek  tribe  or  nation  of  Indians,  the  lands  belong- 
ing to  said  tribe  of  Indians.  That  the  work  of  allotting  the 
tribal  lands  of  the  Creek  tribe  or  nation  of  Indians  is  still  in 
progress  by  complainant,  and  is,  as  yet,  uncompleted,  and  that 
by  virtue  of  complainant's  right  and  duty  as  a  sovereign  and 
governing  power  of  said  tribe  of  Indians,  and  for  the  purpose 
of  discharging  its  full  duty  and  obligation  toward  said  tribes 
of  Indians,  and  fully  executing,  carrying  out  and  discharging 
its  duty  in  relation  to  the  allotment  in  severalty  of  the  lands  of 
said  tribe  of  Indians,  to  the  duly  enrolled  members  thereof, 
according  to  the  true  spirit,  intent  and  purpose  of  said  trust, 
complainant  brings  and  prosecutes  this  action  in  its  own  behalf 
and  in  behalf  of  the  Creek  tribe  or  nation  of  Indians. 

IV.  Plaintiff  further  shows  that  the  following  described 
lands,  to-wit : 

The  northwest  quarter  of  section  9,  in  township  18  north, 
range  7  east,  was,  on  the  1st  day  of  April,  1899,  and  at  all  the 
times  hereinafter  mentioned,  and  .still  is,  a  part  of  the  land  be- 
longing to  the  Creek  nation  of  Indians  as  public  and  unallotted 
domain,  subject  to  be  allotted  to  lawfully  enrolled  members 
and  citizens  of  the  Creek  nation  by  complainant,  under  and  by 
virtue  of,  and  in  accordance  with^  the  terms  and  proceedings 
of  the  acts  of  Congress  passed  and  approved  March  1,  1901, 
and  June  30,  1902. 

V.  Plaintiff  further  shows  that  by  virtue  of  the  authority 
conferred  upon  the  commission  to  the  five  civilized  tribes  un- 
der the  acts  of  Congress  passed  and  approved  June  28,  1898, 
March  1,  1901,  and  June  30,  1902,  as  amended  by  the  several 
acts  of  Congress  supplemental  thereto  arid  amendatory  thereof, 
said  commission  to  the  five  civilized  tribes,  acting  under  the 


620  SUITS    IN    EQUITY. 

supervision  of  the  secretary  of  the  interior,  was  charged  with 
the  duty  of  determining-  who  were  entitled  under  the  said  acts 
of  Congress  to  be  enrolled  as  citizens  and  freedmen  of  the 
Creek  nation,  and  with  the  duty  of  surveying  and  allotting  to 
the  lawfully  enrolled  citizens  and  freedmen  of  said  nation  their 
respective  due  proportions  of  the  allottable  land  belonging  to 
the  said  nation,  of  which  the  land  hereinbefore  described  was 
a  part. 

VI.  Plaintiflf  further  shows  that  one  Barney  Thlocco  was  in 
his  lifetime  a  Creek  Indian  by  blood ;  that  he  died  at  about  the 
beginning  of  the  year  1899  and  prior  to  April  1,  1899,  and  he 
was  not  entitled  to  be  enrolled  as  a  citizen  of  the  Creek  nation 
or  to  receive  in  allotment  any  part  of  its  lands  under  the  acts 
of  Congress  hereinbefore  referred  to ;  that  on  or  about  the 
24th  day  of  May^  1901,  the  commission  to  the  five  civilized 
tribes  caused  the  name  of  the  said  Barney  Thlocco  to  be  placed 
on  the  rolls  of  the  Creek  citizens  by  blood  which  the  said  com- 
mission was  then  preparing  under  the  aforesaid  acts  of  Con- 
gress :  that  no  hearing  was  held  or  investigation  made  by  said 
commission  and  no  evidence  of  any  kind  was  produced  before 
or  obtained  or  had  by  it  with  respect  to  the  said  Barney  Thloc- 
co's  right  under  under  said  acts  of  Congress  to  be  so  enrolled, 
and  the  said  commission  neither  gave  nor  caused  to  be  given 
to  the  Creek  nation  or  its  officers  or  any  other  person  any  notice 
that  said  Barney  Thlocco's  name  was  about  to  be  or  would  be 
so  enrolled,  and  there  was  no  controversy,  contest  or  adverse 
proceeding  of  any  kind  by  or  before  the  said  commission  with 
respect  to  the  enrollment  of  the  said  Barney  Thlocco  or  his 
right  to  be  so  enrolled. 

Plaintiff  avers  that  in  so  causing  the  name  of  the  said  Bar- 
ney Thlocco  to  be  placed  upon  the  roll  of  Creek  citizens  by 
blood,  the  said  commission  acted  arbitrarily  and  summarily 
and  without  knowledge,  information  or  belief  that  said  Barney 
Thlocco  was  living  or  dead  on  April  1.  1899,  buL  acted  on  a 
mere  arbitrary  and  erroneous  assumption  wholly  unsupported 
by  evidence  of  information,  that  the  said  Barney  Thlocco  was 
living  on  April  1,  1899,  and  was  entitled  to  be  enrolled  by  the 
said  commission  under  the  acts  of  Congress  aforesaid. 


BILLS    IN    SPECIAL    CASES.  621 

Plaintiff  further  shows  that  the  said  commission  in  so  arbi- 
trarily assuming  that  the  said  Barney  Thlocco  was  living  on 
April  1,  1899,  and  in  so  causing  his  name  to  be  placed  on  the 
roll  of  Creek  citizens  by  blood,  made  a  gross  mistake  of  fact 
and  of  law,  for  plaintiff  avers  that  the  said  commission  did  not 
know  nor  did  they  have  any  evidence  before  them  at  the  time 
they  caused  the  name  of  the  said  Barney  Thlocco  to  be  so  en- 
rolled, either  showing  or  tending  to  show  whether  the  said 
Barney  Thlocco  was  living  or  dead  on  April  1,  1899,  but  if 
the  true  time  of  the  death  of  the  said  Barney  Thlocco  as  here- 
inbefore alleged  had  been  known  to  the  said  commission  at  or 
before  the  time  of  the  enrollment  of  the  said  Barney  Thlocco 
as  a  citizen  of  the  Creek  nation  who  had  been  living  on  April 
1.  1899,  entitled  to  receive  a  distributive  share  of  the  lands  of 
the  Creek  nation,  he  would  not  have  been  so  enrolled  by  the 
said  commission. 

Plaintiff  avers  its  inability  to  set  out  here  any  evidence  taken 
before  or  had  by  the  said  commission  respecting  the  question 
whether  Barney  Thlocco  was  living  or  dead  on  April  1,  1899, 
for  plaintiff  says  that  no  evidence  whatever  bearing  in  any 
way  upon  that  question  was  taken  before  or  had  by  the  said 
commission. 

VII.  Plaintiff  further  shows  that  after  the  said  arbitrary 
and  erroneous  enrollment  of  the  name  of  the  said'  Barney 
Thlocco  as  being  the  name  of  a  Creek  Indian  who  was  living 
on  April  1.  1899.  and  was  entitled  to  receive  a  distributive 
share  of  the  unallotted  domain  of  the  Creek  nation,  and  on, 
to-wit,  the  30th  day  of  June,  1902.  the  said  commission  to  the 
five  civilized  tribes,  being  wholly  without  evidence  or  infor- 
mation showing  or  tending  to  show  whether  Barney  Thlocco 
had  been  living  or  dead  on  April  1,  1899,  and  solely  by  reason 
of  his  said  arbitrary  and  erroneous  enrollment,  purported  to 
allot  in  the  name  of  the  said  Barney  Thlocco  the  tract  of  land 
hereinbefore  described,  and  accordingly,  on  June  30.  1902.  a 
certificate  of  allotment  was  issued  in  the  name  of  the  said 
Barney  Thlocco  as  if  he  were,  and  under  the  arbitrary  assump- 
tion on  the  part  of  the  said  commission  that  he  then  was  a 


622  SUITS    IN    EQUITY. 

living  person,  that  assumption  being  founded  on  no  evidence 
or  information  whatever  as  to  the  time  of  Barney  Thlocco's 
death  or  as  to  whether  Barney  Thlocco  was  or  was  not  a  living 
person  on  April  1,  1899,  or  on  June  30,  1902.  A  true  copy 
of  the  said  allotment  certificate  is  hereto  attached  and  made  a 
part  hereof  as  "Exhibit  A." 

VIII.  Plaintiff  further  shows  that  after  the  purported  allot- 
ment of  the  above  described  land  in  the  name  of  the  said  Bar- 
ney Thlocco,  homestead  and  allotment  patents  purporting  to 
convey  the  said  land  to  the  said  Barney  Thlocco  were  executed 
by  the  principal  chief  of  the  Creek  nation  on  March  11,  1903, 
and  approved  by  the  secretary  of  the  interior  on  April  3,  1903. 
A  copy  of  the  said  homestead  and  allotment  patents  are  hereto 
attached,  marked  Exhibits  "B"  and  "C,"  respectively,  and  are 
made  a  part  of  this  amended  bill  of  complaint.  The  land  de- 
scribed in  the  said  patents  comprises  the  same  land  herein- 
before described,  all  of  which  is  located  in  what  is  now  Creek 
county  in  the  eastern  judicial  district  of  the  state  of  Oklahoma. 
Neither  of  said  patents  has  ever  been  delivered  to  the  said 
Barney  Thlocco  or  to  any  other  person,  but  the  same  are  in 
the  possession  of  complainant  through  its  officers  and  agents. 

IX.  Plaintiff  further  shows  that  knowledge  or  information 
as  to  the  mistake  of  fact  made  by  the  said  commission  in  caus- 
ing the  name  of  the  said  Barney  Thlocco  to  be  enrolled  and  in 
purporting  to  allot  to  him  a  portion  of  the  lands  of  the  Creek 
nation  was  not  had  by  complainant  until  after  the  purported 
allotting  of  the  said  land  and  the  issuance  of  said  allotment 
certificate  and  until  after  the  preparation,  execution  and  ap- 
proval of  the  said  patents ;  nor  did  complainant  know  until 
thereafter  that  the  said  Barney  Thlocco  had  died  prior  to 
April  1.  1899. 

X.  Plaintiff  further  shows  that  on.  to-wit.  December  13, 
1906,  the  secretary  of  the  interior,  by  his  executive  order, 
caused  the  name  of  the  said  Barney  Thlocco  to  be  stricken 
from  the  roll  of  citizens  by  blood  of  the  Creek  nation  opposite 
No.  8592  on  the  said  roll,  and  the  said  Barney  Thlocco  is  not 
an  enrolled  citizen  by  blood  or  otherwise  of  the  Creek  nation, 


BILLS    IN    SPECIAL    CASES.  623 

and  is  not  now,  and  has  never  been,  entitled  to  an  allotment  of 
land  therein  because  he  has  never  been  a  lawfully  enrolled 
citizen  thereof,  and  because  he  died  prior  to  April  1,  1899. 

XI.  Plaintiff  further  shows  that  by  reason  of  the  error 
committed  by  the  commission  to  the  five  civilized  tribes  by 
means  and  by  reason  of  which  an  allotment  was  purported  to 
be  made  to  and  in  the  name  of  the  said  Barney  Thlocco,  and 
the  said  allotment  certificate  was  issued  and  the  said  patents 
executed  and  approved,  and  by  reason  of  the  recording  of  the 
said  instruments  in  the  office  of  the  commission  to  the  five 
civilized  tribes,  said  instruments  and  proceedings  'constitute  a 
cloud  upon  the  Creek  nation's  title  to  the  said  land,  and  the 
existence  of  the  said  cloud  on  the  said  title  and  the  existence 
of  the  said  allotment  certificate  and  patents  hinders  and  delays 
complainant  in  the  performance  of  the  duty  imposed  on  it  by 
law  to  allot  and  otherwise  dispose  of  the  lands,  and  to  wind 
up  the  affairs  of  the  Creek  nation. 

XII.  Plaintiff  further  shows  that  it  is  informed  and  be- 
lieves, and  therefore  avers  the  truth  to  be,  that  all  and  singular 
the  defendants  named  in  the  caption  hereof  claim  some  right, 
title,  interest  or  estate  in  and  to  the  lands  aforesaid,  either  by 
reason  of  being  heirs  at  law  of  the  said  Barney  Thlocco,  de- 
ceased, or  by  reason  of  being  guardians,  grantees  or  lessees  of 
the  heirs  or  some  of  them,  such  claims  being  adverse  to  com- 
plainant and  the  Creek  nation,  but  the  precise  nature  and  ex- 
tent of  them  being  unknown  to  plaintiff;  but  plaintiff  alleges 
the  truth  to  be  that  none  of  the  said  defendants  has,  either  at 
law  or  in  equity,  any  right,  title,  interest  or  estate  in  or  to  the 
said  land  or  any  part  thereof. 

(l)For  as  much  as  complainant  has  no  adequate  remedy  at 
law  and  can  have  no  adequate  relief  except  from  a  court  of 
equity,  and  to  the  end,  therefore,  that  the  defendants  may,  if 
they  can,  show  cause  why  complainant  should  not  have  the 
relief  prayed  for,  plaintiff  prays  (subpoenas  having  been  here- 
tofore issued  and  served  upon  the  said  defendants  and  their 
appearance  entered  herein")  that  the  defendants  be  required  to 
make  a  full  disclosure  and  discovery  of  the  matters  aforesaid 


624  SUITS    IN    EQUITY. 

according  to  the  best  and  utmost  of  their  knowledge,  remem- 
brance, information  and  beHef,  and  true,  direct  and  perfect 
answers  make  to  the  matters  liereinbefore  charged,  but  not 
under  oath,  answer  under  oath  being  hereby  expressly  waived. 
Plaintiff  further  prays  that  this  court  decree  that  the  allot- 
ment certificate  and  patents  attached  hereto  as  Exhibits  "A," 
"B"  and  "C"  are  void  and  of  no  effect  as  instruments  of  con- 
veyance, and  that  the  same  be  cancelled;  that  all  the  defend- 
ants be  decreed  to  have  no  right,  title,  interest  or  estate  in  and 
to  the  said  land,  and  that  the  title  to  said  land  be  quieted  in 
complainant  and  the  Creek  nation  of  Indians,  and  that  what- 
ever cloud  is  cast  upon  the  title  to  the  said  land  by  reason  of 
any  of  the  matters  aforesaid,  be  decreed  by  this  court  to  be 
dissolved  and  that  said  land  be  decreed  to  be  a  part  of  the 
public  and  unallotted  tribal  land  of  the  Creek  nation,  subject 
to  disposition  by  complainant  in  accordance  with  law,  and  that 
the  enrollment  of  the  said  Barney  Thlocco  be  cancelled,  and 
that  he,  or  any  person  claiming  by,  through  or  under  him,  in- 
cluding these  defendants,  be  decreed  by  this  court  to  be  not 
entitled  to  participate  in  the  disposition  of  the  lands,  moneys 
and  other  property  of  the  Creek  nation,  and  that  the  defend- 
ants, all  and  singular,  be  forever  enjoined  from  asserting  any 
claim  of  title  to  or  interest  in  the  tract  of  land  hereinbefore 
described,  adverse  to  tlie  complainant  and  the  Creek  nation, 
and  that  complainant  have  such  other  relief  as  the  court  shall 
deem  equitable,  premises  considered. 

D.     H.    LiNEBAUGH, 

U.  S.  Attorney,  Eastern  District  of  Oklahoma, 

C.  C.  Herndon, 
Special  Assistant  to  U.  S.  At<"orney, 

Solicitors  for  Complainant. 

(1)  Foster's  Fed.  Prac,  5th  ed.,  Sec.  79. 

This   paragraph    is    in   strict   accord    with    the    older    pleading,    but   is 
rendered  unnecessary  by  the  new  rules.    Eq.  Rule  25. 


BILLS    IN    SPECIAL    CASES.  625 

No.  452. 

To  Remove  a  Cloud  on  the  Title  (Amended  Bill). 

[Caption,] 

The  California  Land  Company,  a  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  state  of  Idaho 
and  a  citizen  of  said  state,  brings  this  its  bill  of  complaint 
against  F.  F.  Doane,  a  citizen  of  the  state  of  CaHfornia,  and  a 
resident  of  the  city  of  Los  Angeles  in  the  state  of  California 
and  in  the  southern  district  of  CaHfornia,  And  for  its  cause 
of  action  plaintiff  states  : 

1.  That  the  amount  in  controversy  herein  exceeds  the  sum 
of  $3,000,  exclusive  of  interest  and  costs. 

2.  That  the  complainant  is  the  owner  in  fee  in  the  posses- 
sion and  entitled  to  the  possession  of  the  following  described 
lands,  to-wit:     [Here  follows  description.] 

3.  That  the  defendant,  F.  F.  Doane,  claims  an  estate  there- 
in adverse  to  this  complainant.  That  such  claim  is  wholly  un- 
founded and  invalid  in  law  or  equity,  and  that  the  assertion 
depreciates  the  value  of  its  title  and  property  and  prevents  it 
from  using  or  selling  the  property  and  otherwise  harasses  and 
annoys  it  in  its  possession  and  ownership.  That  the  claim  of 
said  defendant  is  without  any  right  whatever,  and  said  defend- 
ant has  no  estate,  right,  title  or  interest  whatever  in  said  lands 
or  premises  or  any  part  thereof.  That  the  claim  of  said  de- 
fendant operates  as,  and  is,  a  cloud  upon  the  title  of  said  com- 
plainant to  said  lands  and  premises  and  causes  complainant 
irreparable  injury,  and  defendant  threatens  to  continue,  and 
does  continue,  to  set  up  and  claim  said  title  to  said  land  and 
premises  adverse  to  this  complainant. 

Complainant  therefore  prays  that  the  defendant  may  be  re- 
quired to  answer  and  to  set  forth  the  grounds  and  nature  of 
his  claims  and  pretensions,  and  that  this  court  may  determine 
each  of  them  and  that  it  may  be  adjudged  that  they  are  un- 
founded in  law  and  equity,  and  that  the  complainant  is  the 
owner  of  said  premises  and  entitled  to  their  possession,  and 


626  SUITS    IN    EQUITY. 

for  such  other  and  further  relief  as  may  be  just  and  equitable. 

A.  B., 
Solicitor  for  Complainant. 
[  Verification.  ] 

(1)  Amendment  of  the  bill,  as  of  course,  may  be  made  before  answer, 
according  to  Equity  Rule  28,  with  provision  for  payment  of  cost  of  copies 
of  amended  bill  filed  after  copy  of  original  has  been  furnished  from  the 
clerk's  office. 

If  defendant  has  filed  a  pleading  then  plaintiff  may  amend  only  by 
consent  of  defendant  or  leave  of  the  court  or  a  judge. 

The  Equity  Rules  contain  other  provisions  concerning  amendment; 
Rule  19  provides  for  amendment  to  any  process,  proceeding,  pleading  or 
record,  or  the  setting  forth  of  material  supplemental  matter,  at  the  discre- 
tion of  the  court  at  any  time,  upon  terms ;  Rule  43  provides  for  amendment 
at  discretion  of  the  court  where  defendant  has  suggested  a  defect  of 
parties  and  the  plaintiff  has  proceeded  to  a  hearing  notwithstanding  the 
objection;  Rule  4S  provides  for  amendment  by  order  of  court  on  motion 
to  revive. 

In  Western  Union  Telegraph  Co.  v.  Atlanta  and  West  Point  Railroad 
Co.,  238  Fed.  36,  the  bill  of  complaint  set  out  a  claim  to  irrevocable,  per- 
petual, and  assignable  easements  or  rights  for  the  construction  and  main- 
tenance of  telegraph  lines  over  the  right  of  way  of  defendant  railway,  but 
set  out  no  facts  to  support  the  claim.  The  bill  was  dismissed  and  on 
appeal  the  decree  was  modified  by  making  the  dismissal  conditional  upon 
the  filing  of  amendments  in-  the  trial  court  within  a  designated  time  after 
the  filing  of  the  mandate  below. 

In  Whitaker  et  al.  v.  Whitaker  Iron  Co.  et  al.,  238  Fed.  980,  at  p.  991, 
the  court  holds  that  an  amendment  introducing  matter  known  at  the 
filing  of  the  bill  is  within  the  discretion  of  the  court  under  Rule  19. 

In  Whitney  Central  Trust  &  Sav.  Bk.  v.  General  Fire  Extinguisher 
Co.,  240  Fed.  631',  an  intervening  petitioner  was  decreed  a  lien  on  certain 
movables  and  also  on  other  property,  and  on  appeal  the  decree  ordering 
a  lien  on  other  property  was  reversed ;  the  portion  of  the  decree  awarding 
a  lien  on  movables  because  of  a  vendor's  privilege  was  attacked  because 
the  petition  did  not  set  out  facts  creating  a  vendor's  privilege ;  the  ap- 
pellate court  ordered  that  petitioner  be  given  an  opportunity  in  the  lower 
court  to  make  appropriate  amendment. 

In  Jennings  v.  Smith,  242  Fed.  561,  held  that  where  certain  persons 
are  shown  to  have  an  interest  in  the  subject  of  the  action,  see  Equity  Rule 
37,  the  bill  may  be  amended  to  make  them  parties,  at  the  discretion  of  the 
court,  ar  any  time,  under  Equity  Rule  28. 

In  Schaum  and  Uhlinger  v.  Copley  Plaza  Co.,  243  Fed.  924,  the  bill  of 
complaint  for  patent  infringement  did  not  allege  that  the  patent  in  suit  was 
(a)  issued  in  the  name  of  the  United  States ;  (b)  under  seal  of  the 
patent  office,  or  (c)  was  signed  by  the  commissioner  of  patents;  copy  of 


BILLS    IN    SPECIAL    CASES.  627 

patent  was  not  annexed  and  profert  was  not  made.     Held,  plaintiff  may 
amend  by  making  profert.     See  Equity  Rule  19. 

An  amendment  to  a  bill  of  complaint  must  conform  to  Rule  25,  govern- 
ing bills  of  complaint ;  hence,  statements  of  law,  statutory  and  customary, 
and  argumentative  expressions  of  a  multitude  of  legal  conclusions,  ac- 
companied by  copious  references  to  and  comments  upon  court  decisions, 
are  out  of  place  in  an  amendment. 


No.  453. 

For  Lien  on  Cattle  and  Decree  of  Sale. 

[Caption.] 

The  plaintiff,  The  Union  Stock  Yards  National  Bank,  of 
Wichita,  Kansas,  states  that  it  is  a  corporation  duly  created, 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the 
United  States  of  America,  commonly  called  the  national  bank 
acts  (and  the  several  acts  amendatory  thereof),  and  is  a  citizen 
of  the  state  of  Kansas,  having  its  principal  office  at  and  in 
Wichita,  Kansas,  Sedvvick  county,  and  there  engaged  in  the 
banking  business,  with  power  and  authority  to  contract  and  be 
contracted  with,  to  sue  and  to  be  sued,  and  to  loan  money  and 
secure  the  payment  thereof  by  mortgages  on  personal  property. 

The  plaintiff  states  that  the  defendant,  Fred  Hamilton,  is  a 
citizen  of  the  state  of  Kentucky,  residing  at  Owensboro,  in 
Daviess  county,  Kentucky ;  and  that  the  defendant,  James  S. 
Cru.se,  is  a  citizen  of  the  state  of  Kentucky,  residing  at  Owens- 
boro. in  Daviess  caunty,  Kentucky.;  and  that  the  defendant, 
Bushrod  J.  Milton,  is  a  citizen  of  the  state  of  Kentucky,  resid- 
ing at  Owensboro,  in  Daviess  county,  Kentucky;  and  each  one 
of  said  defendants  is  an  inhabitant  of  the  western  district  of 
Kentucky,  and  they  are  now,  and  were  on  all  of  the  dates 
herein  mentioned,  partners  trading  in  and  buying  cattle,  and 
doing  business  as  cattle  dealers  in  the  city  of  Owensboro, 
Daviess  county,  and  in  the  state  of  Kentucky,  by  and  under 
the  firm  name  of  Hamilton  Cattle  Company. 

The  plaintiff  states  that  on  the  11th  day  of  November.  1914, 
one  Roy  E.  Westbrook  borrowed  of  it,  and  it  delivered  to  him, 
in  cash,  in  Wichita,  Kansas,  at  its  banking  house  in  and  at  that 


628  SUITS    IN    EQUITY. 

place,  the  sum  of  $3,265.25,  for  which  the  said  Roy  E.  West- 
brook  then  and  there  signed,  executed  and  delivered  to  it  his 
certain  promissory  note,  whereby  and  wherein  he  promised  to 
pay  to  its  order,  at  its  said  bank  in  Wichita,  Kansas,  on  the 
11th  day  of  March,  1915,  the  sum  of  $3,265.25,  with  interest 
thereon  at  the  rate  of  ten  per  centum  per  annum,  after  the 
maturity  of  said  note,  until  paid.  No  part  of  said  note  has 
ever  been  paid  and  a  copy  thereof  is  filed  herewith  and  made 
a  part  hereof,  marked  "Exhibit  A." 

Plaintiff  states  that  simultaneously  with  the  execution  of 
said  note,  and  for  the  purpose  of  securing  the  prompt  and 
faithful  payment  thereof,  at  its  maturity,  the  said  Roy  E. 
Westbrook  signed,  executed  and  delivered  to  it  a  mortgage, 
whereby  and  wherein  he,  the  said  Roy  E.  Westbrook,  sold, 
assigned  and  delivered  unto  it : 

Seventy-four  (74)  head  of  coming  two  (2)  year  old  native 
steers.  Ninety  per  cent.  (90)  of  which  were  red  and  the  bal- 
ance were  mixed  colors ;  the  average  weight  of  said  cattle  was 
about  690  pounds ;  and  were  branded  W  on  the  right  hip. 

Plaintiff  further  states  that  it  accepted  said  mortgage,  and 
same  is  filed  herewith,  as  part  hereof,  marked  "Exhibit  B," 
and  as  provided  by  law  on  the  19th  day  of  November,  1914, 
A.  D..  at  eight  o'clock  a.  m.,  it  deposited  a  true  copy  of  said 
mortgage  in  the  ofifice  of  the  register  of  deeds  for  Marion 
county,  Kansas,  and  the  said  register  of  deeds  endorsed  on 
the  back  of  said  copy  of  said  mortgage  the  time  of  receiving 
same,  to-wit,  November  19,  1914,  eight  o'clock  a.  m.,  and  did 
file  said  copy  in  his  ofifice,  and  has  kept  the  same  in  his  said 
office  for  the  inspection  of  all  persons  interested,  from  and 
after  the  date  of  receiving  same,  and  said  register  of  deeds  did 
enter  a  minute  of  said  mortgage  in  a  book  kept  for  that  pur- 
pose in  his  office,  giving  the  time  of  the  reception  of  said  mort- 
gage, the  name  of  the  mortgagor,  the  name  of  the  mortgagee, 
and  a  general  description  of  the  place  and  property  where 
located,  as  is  provided  for  under  the  general  statutes  of  the 
state  of  Kansas. 


BILLS    IX    SPECIAL    CASES.  629 

Plaintiff  further  states  that  at  the  time  of  the  execution  and 
dehvery  of  said  mortgage  to  plaintiff,  said  above  described 
cattle  were  located  on  the  northwest  quarter  of  section  16, 
township  27.,  range  4  east,  in  Peabody  township,  Marion 
county,  Kansas,  where,  under  the  terms  of  said  mortgage,  said 
cattle  were  to  remain  during  the  life  of  the  loan  so  made  to 
the  said  Roy  E.  Westbrook,  and  said  county  of  Marion  in  the 
state  of  Kansas  was,  at  the  time  said  mortgage  was  so  exe- 
cuted and  delivered,  the  county  and  state  of  the  residence  of 
said  Roy  E. 

Plaintiff  further  states  that  said  cattle,  described  in  said 
mortgage,  were,  by  the  said  Roy  E.  Westbrook,  in  the  month 
of  December,  1914,  transported  to  Kansas  City  in  the  state  of 
Missouri,  and  there  sold  and  delivered  to  the  defendants,  doing 
business  as  the  Hamilton  Cattle  Company,  and  from  thence 
were  transported  by  the  defendants  to  Owensboro  in  Daviess 
county,  Kentucky,  where  they  are  now  in  possession  of  the 
defendants,  on  the  property  of  the  Green  River  Distilling  Com- 
pany, about  one  mile  west  of  Owensboro,  and  in  Daviess 
county,  Kentucky. 

Plaintiff  states  that  the  amount  in  controversy  herein  is  in 
excess  of  $3,000,  exclusive  of  interest  and  costs,  and  that  the 
fair,  reasonable  market  value  of  said  cattle  is  now,  and  was 
during  the  month  of  December,  1914,  and  at  the  time  said 
cattle  were  sold  and  delivered  to  the  defendants,  as  herein- 
above stated,  in  excess  of  $4,000. 

Plaintiff  further  states  that  it  was  agreed  by  and  between  it 
and  the  said  Roy  E.  Westbrook,  and  was  expressed  in  writing 
in  said  mortgage,  that  upon  the  failure  of  said  Roy  E.  West- 
brook to  conform  or  to  comply  with  any  of  the  conditions  or 
agreements  mentioned  in  said  mortgage,  then  the  whole  sum 
of  money  secured  by  said  mortgage  should,  at  the  option  of 
the  legal  holder  of  said  mortgage,  become  due  and  payable  at 
once  without  notice,  and  that  in  case  of  sale  or  disposal,  or 
attempt  to  sell  or  dispose  of  any  of  the  cattle  mortgaged,  or  a 
removal  of  or  attempt  to  remove  the  same  from  the  county  of 
Marion  in  Kansas,  or  an  unreasonable  depreciation  in  value,  or 


630  SUITS    IN    EQUITY. 

if  from  any  other  cause  the  security  should  become  inadequate, 
or  the  plaintiff  should  deem  itself  insecure,  then  and  thence- 
forth it  should  be  lawful  for  the  plaintiff,  or  its  authorized 
agent,  to  enter  upon  the  premises  of  the  said  Roy  E.  West- 
brook,  or  any  other  place  or  places  wherein  said  cattle  miglit 
be,  and  to  remove  and  dispose  of  the  same,  and  all  of  the  equity 
redemption  of  the  said  Roy  E.  Westbrook  sold  at  public  auc- 
tion or  private  sale  in  the  county  where  said  cattle  was  found, 
and  out  of  the  avails  thereof  to  retain  the  full  amount  of  the 
note  set  out  in  said  mortgage,  with  interest  thereon  according 
to  the  conditions  of  said  note,,  together  with  all  reasonable 
costs  and  expenses  attending  the  same,  rendering  to  the  said 
Roy  E.  Westbrook  the  surplus  money,  if  any  there  should  be, 
anything  in  said  mortgage  to  the  contrary  notwithstanding. 
It  is  further  provided  by  and  in  said  mortgage  that  if  the  said 
Roy  E.  Westbrook  should  pay,  or  caused  to  be  paid,  unto  the 
plaintiff  the  said  sum  of  $3,265.25,  with  interest  thereon  at 
the  rate  of  ten  per  centum  per  annum  from  the  maturity  of 
said  note,  then  said  mortgage  and  everything  contained  therein 
should  be  void,  anything  in  said  mortgage  to  the  contrary  not- 
withstanding. 

Now,  the  plaintiff  states  that  the  said  Roy  E.  Westbrook 
violated  the  terms  and  conditions  of  said  mortgage  in  this, 
that  he  removed  said  cattle  from  the  northwest  quarter  of  sec- 
tion 16,  township  22,  range  4  east,  in  Peabody  township,  Ma- 
rion county.  Kansas,  where  they  were,  and  were  to  remain 
during  the  life  of  the  lien  secured  by  said  mortgage,  and  trans- 
ported them  to  Kansas  City,  Missouri,  where  they  were  sold 
and  delivered  to  the  defendants. 

And  the  plaintiff  now  hereby  elects  to  and  does  exercise  its 
option  to  treat  said  note  as  due,  and  said  note  by  and  under  the 
terms  of  said  mortgage  has  become  due,  and  no  part  thereof, 
or  any  of  the  interest  thereon,  has  ever  been  paid. 

Plaintiff  further  states  that  it  has.  by  virtue  of  the  sip-ning. 
execution  and  delivery  to  it  of  said  mortgage  by  tne  said  Roy 
E.  Westbrook,  and  the  depositing  of  said  mortgage  by  it  in 
the  county  of  Marion,  Kansas,  as  aforesaid,  a  lien  on  the  above 


BILLS    IN    SPECIAL    CASES.  631 

described  cattle  to  secure  it  in  the  payment  of  the  sum  of 
$3,265.25,  with  interest  thereon  at  the  rate  of  ten  per  centum 
per  annum  from  the  11th  day  of  March,  1915,  until  paid,  and 
its  costs  expended  in  this  action,  a  valid  and  subsisting  lien  on 
said  cattle,  prior  and  superior  to  any  interest  that  the  defend- 
ants may  have  in  and  to  said  mortgaged  property ;  and  no  one 
other  than  the  plaintiff  and  the  defendants  have  any  lien  upon 
or  any  interest  in  said  cattle. 

The  plaintiff  further  states  that  the  said  Roy  E.  Westbrook 
is  not  now  wnthin  the  jurisdiction  of  this  court,  and  is  not 
therefore  made  a  party  hereto. 

Wherefore  plaintiff  prays  the  court  that  its  said  mortgage 
lien  upon  said  cattle  be  recognized,  established  and  enforced; 
and  that  this  court  decree  a  sale  of  said  cattle,  and  that  the 
same,  or  the  required  number  thereof,  be  sold  to  satisfy  its 
said  mortgage  debt,  the  interest  thereon,  and  the  costs  of  this 
action ;  and  plaintiff  further  prays  for  all  such  equitable  relief 
as  it  may  show  itself  entitled. 

E.  B.  Anderson^ 

Clarence  Finn, 

Attorneys  for  Plaintiff. 


No.  454. 

To  Enforce  a  Lien  Against  a  Distillery. 

The  District  Court  of  the  United  States  in  and  for 
the District  of . 


\ 


The  United  States  of  America,  Plaintiffs, 

vs.  )-  In  Equity. 

C.  D.,  Defendant. 

To  the  Honorable  Judge  of  the  District  Court  of  the  United 
States  for  the District  of  — -—. 

The  plaintiits,  the  United  States  of  America,  respectfully 
show  unto  your  honor  that  C.  D.  was  engaged  in  the  business 

of  a  distiller  in  the  year  of ,  in county,  in  the 

collection  district  of  the  state  of  ;  and  as  such  distiller 


632  SUITS    IN    EQUITY. 

made  returns  to  the  assessor  of  said  district  of  spirits  by  him 

produced  during  the  month  of ,  1894.     And  the  assessor 

of  said  district,  proceeding  to  inquire  and  determine  if  said 
C.  D.  had  accounted  for  all  the  spirits  produced  by  him  dur- 
ing said  month  of ,  1894,  under  and  by  virtue  of  Section 

20  of  the  act  of  Congress  approved  July  20,  1868,  ascertained 
that  the  quantity  of  spirits  returned  by  the  said  C.  D.,  as 
produced  by  him  during  said  month,  was  less  than  eighty  per 
centum  of  the  producing  capacity  of  his  said  distillery  as 
estimated  under  the  provisions  of  the  act  aforesaid.  And 
thereupon  the  said   assessor  made  an  assessment  upon  said 

C.  D.   for  deficiency,  amounting  to  dollars,  which  was 

thereupon  placed  in  the  hands  of  the  collector  of  said  district, 
and  payment  thereof  demanded  of  the  said  C.  D.,  yet  the  said 
assessment  still  remains  due  and  unpaid,  and  is  a  lien  upon 
the  distillery  and  the  lot  of  land  upon  which  the  same  was 
situated,  to-wit :  [Here  set  forth  description  of  the  property 
in  full.] 

The  plaintiffs  further  show  that  G.  B.,  E.   P.  and  S.  G. 

have  a  mortgage  lien  upon  the  said  premises,  but  on  the 

day  of  ,   18 — ,  they  gave  their  consent  in  writing,  duly 

acknowledged,  that  the  lien  of  the  United  States  for  taxes 
and  penalties  should  have  priority  of  their  said  mortgage. 

Wherefore  plaintiffs  pray  that  due  process  issue,  requiring 
said  C.  D.  and  A.  D.,  his  wife,  G.  B.,  E.  P.  and  S.  G.  to 
appear  and  answer  this  bill  of  complaint;  that  the  said  dis- 
tillery and  lot  of  land  above  described  may  be  sold  to  satisfy 
said  lien,  and  that  plaintiff  may  have  such  other  and  further 
relief  as  may  be  just  and  equitable.  J.  H., 

United  States  Attorney,  Solicitor  for  Plaintiffs. 


BILLS    IN    SPECIAL    CASES.  633 

No.  455. 

Of  Interpleader(l).    (Old  English  Form.)    Bill  by  a  Lessee 

Against  Different  Persons,  Claiming  the  Rents  by 

Different  Titles,  to  Have  Them  Interplead. 

[Caption  and  address.] 

Humbly  complaining,  showeth  unto  your  lordship  your 
orator  A,  B.,  of,  etc.,  that  the  mayor,  citizens,  and  com- 
monalty of  the  city  of  C,  being  seized  as  of  fee,  of  and  in 
the  perpetual  curacy  of  D.,  by  indenture,  etc.  [State  the 
demise  from  the  corporation  to  the  Reverend  E.  D.,  etc., 
clerk,  a  defendant  hereinafter  named,  for  life;  and  state  the 
demise  of  the  tithes  from  the  said  E.  D.  to  the  complainant ; 
and  also  state  a  subsequent  grant  of  an  annuity  out  of  the 
profits  of  the  said  perpetual  curacy  by  the  said  E.  D.  to  F. 
G.,  another  defendant  hereinafter  named.]  And  your  orator 
further  showeth  unto  your  lordship  that  the  said  E.  D.,  at 
the  time  of  making  the  said  last-mentioned  indenture  or  grant 

of  annuity  to  the  said  F.  G.,  and  on  or  about  the day 

of  ,   in  the  year  ,  was  actually  a  prisoner  in  his 

majesty's  King's  Bench  prison  for  debt,  at  the  suit  of  one 

L.  M.,  and  others  his  creditors ;  and  that  on  the day  of 

,  in  the  year  ,  at  a  session  than  held  at  Horse- 
monger  Lane,  in  the  parish  of  St.  Mary's,  Newington,  in  and 
for  the  county  of  Surrey,  the  said  E,  D.  applied  to  be  dis- 
charged and  exonerated  under  and  by  virtue  of  a  certain  act 
of  Parliament  made  and  passed  in  the  fifty-first  year  of  the 
reign  of  his  late  majesty,  entitled  "An  act  for  the  relief  of 
certain  insolvent  'debtors' " ;  and  the  justices  of  the  peace 
present  at  such  sessions  adjudged  the  said  E.  D.  to  be  set  at 
liberty,  and  he  was  discharged  accordingly;  and  by  virtue  of 
the  said  act  of  Parliament,  all  the  real  and  personal  estate  of 
the  said  E.  D.  was  immediately  after  such  adjudication  there- 
by, and  now  is,  vested  in  N.  O.,  of,  etc.,  Esq.,  the  clerk  of  the 
peace  of  the  said  county  of  Surrey  (another  defendant  here- 
inafter named),  upon  the  trust,  and  for  the  purposes  in  the 
said  act  mentioned,  but  the  said  N.  O.  has  not  hitherto  made 


634  SUITS   IN   EQUITY. 

any  conveyance  or  assignment  thereof.  And  your  orator 
further  showeth  unto  your  lordship  that  your  orator,  in  pur- 
suance of  the  said  indenture  of  demise  so  made  by  the  said 

E.  D.,  as  aforesaid,  duly  paid  the  said  rent  of  £ ,  thereby 

reserved  for  the  said  tithes,  up  to  the day  of last ; 

and  your  orator  has  always  been  ready  and  desirous  to  pay 
the  rent  for  the  said  tithes,  which  has  become  due  since  that 
period,  to  the  person  or  persons  duly  entitled  to  receive  the 
same;  and  your  orator  hoped  he  should  have  been  able  so  to 
have  paid  the  said  rent,  and  that  no  dispute  could  have  arisen 
concerning  the  same,  or  at  least  that  no  suit  would  have  been 
commenced  against  your  orator  in  respect  to  the  said  rent ; 
and  that  the  said  E,  D.,  F.  G.  and  N.  O.  would  have  settled 
between  themselves  their  differences  respecting  the  right  to 
receive  the  said  rent.  But  now  so  it  is,  may  it  please  your 
lordship,  the  said  E.  D.,  F.  G.  and  N.  O.,  respectively,  claim 
to  be  entitled  to  the  said  rent;  and  the  said  E.  D.  has  lately 
commenced  an  action  in  his  majesty's  court  of  common  pleas 

at  Westminster,  for  the  recovery  of  the  sum  of  £ ,  on 

account  of  the  said  rent,  due  from  your  orator  since  

aforesaid.  And  the  said  E.  D.  pretends  that  he  is  discharged 
from  the  said  annuity  so  granted  by  him  as  aforesaid,  in  con- 
sequence of  his  having  taken  the  benefit  of  the  said  insolvent 
act,  and  that  the  interest  of  him,  the  said  E.  D.,  does  not 
vest  in  the  said  N.  O.  as  such  clerk  of  the  peace  as  aforesaid, 
by  the  operation  of  that  act ;  and  the  said  F.  G.  insists  that  he 
ought  to  be  paid  his  said  annuity  out  of  the  said  rent  now 
due  from  your  orator,  and  that  the  said  E.  D.  is  not  dis- 
charged from  such  annuity  under  or  by  virtue  of  such  insol- 
vent act,  but  that  the  said  annual  rent,  payable  by  your 
orator,  still  remains  liable  to  the  payment  of  such  annuity, 
and  he  threatens  and  intends  to  proceed  at  law  against  your 
orator,  unless  the  said  annuity  be  paid  by  him  out  of  such 
rent  And  the  said  N.  O.  pretends  and  insists  that  all  the 
said  estace,  right  and  interest  in  the  said  tithes  vested  in  him, 
the  said  N,  O.,  as  such  clerk  of  the  peace  as  aforesaid,  by  the 
operation  of  the  said  insolvent  act,  and  that  he  is  therefore 
entitled  to  receive  the  said  rent  of  £ ,  payable  by  your 


BILLS    IN    SPECIAL    CASES.  635 

orator,  which  he  insists  is  no  longer  liable  to  the  payment  of 
the  said  annuity.  And  your  orator,  under  the  circumstances 
aforesaid,  is  in  danger  of  being  greatly  harassed  on  account 
of  the  said  rent,  and  can  not  safely  pay  the  same  without  the 
aid  of  this  honorable  court.  And  that  the  said  E.  D.,  and 
F.  G.,  and  N.  O.,  respectively,  may  set  forth  to  whom  the 
said  rent  is  due  and  payable,  and  may  be  decreed  to  interplead 
and  adjust  the  said  several  claims  and  demands  between 
themselves,  your  orator  hereby  offering  to  account  for  and 
pay  the  arrears  of  the  said  rent  now  due  from  him  to  such  of 
them,  the  said  E.  D.,  F.  G.,  and  N.  O.,  as  the  same  shall 
appear  of  right  to  belong  and  be  payable,  on  being  indem- 
nified by  this  honorable  court  in  so  doing,  or  to  pay  the  same 
into  the  hands  of  the  accountant-general  of  this  honorable 
court,  to  be  disposed  of  as  this  honorable  court  shall  direct. 
And  that  the  said  E.  D.  may  be  restrained  by  the  order  and 
injunction  of  this  honorable  court  from  further  prosecution 
of  the  said  action  so  commenced  by  him  against  your  orator 
as  aforesaid,  and  that  he,  and  the  said  F.  G.  and  N.  O.,  re- 
spectively, may  in  like  manner  be  restrained  from  all  other 
proceedings  at  law  whatsoever,  touching  the  matters  in  ques- 
tion in  this  suit,  or  any  of  them.  [And  for  general  relief.] 
May  it  please,  etc.  [End  with  praying  an  injunction  in  the 
terms  of  the  prayer,  and  also  a  subpoena  against  the  said 
E.  D..  F.  G.,  and  N.  O.] 

(1)  Where  two  or  more  persons  whose  titles  are  connected  by  reason 
of  one  being  derived  from  the  other,  or  of  both  being  derived  from  a 
common  source,  claim  the  same  thing,  debt,  or  duty  by  different  or  separate 
interests  from  a  third  person,  and  he,  not  knowing  to  which  one  of  the 
claimants  he  ought  of  right  to  render  the  debt  or  duty,  or  to  deliver  the 
thing,  fears  that  he  may  be  hurt  by  some  of  them,  he  may  maintain  a 
suit  and  obtain  against  them  the  remedy  of  interpleader.  In  his  bill 
of  complaint  he  must  state  his  own  rights  and  their  several  claims,  and 
pray  that  they  may  interplead,  so  that  the  court  may  adjudge  to  whom 
the  debt,  thing,  or  duty  belongs,  and  he  may  be  indemnified.  If  any  suits 
at  law  have  been  brought  against  him  he  may  pray  that  such  proceedings 
be  restrained  until  the  right  be  determined.  Mitford's  Eq.  PI.,  pp.  58,  59. 
If  the  party  has  in  any  way  made  himself  liable,  even  for  the  same  demand, 
to  two  claimants,  he  can  not  have  a  bill  of  interpleader ;  for  it  is  absolutely 
necessary-  to  enable  him  to  file  the  bill  that  he  should  be  liable  to  one  of 
the  two  claimants.     Crawford  v.  Fisher,  1  Hare  436-441;  East  &  West 


636  SUITS   IN    EQUITY. 

India  Dock  Co.  v.  Littledale,  7  Hare  57-60;  Greene  v.  Mumford,  4  R.  I., 
313 ;  Pfister  v.  Wade,  56  Cal.  43. 

For  particulars  with  reference  to  Bills  of  Interpleader  in  Federal 
Practice.  See  Beach's  Modern  Eq.  Prac,  Sec.  141  et  seq. ;  Foster's  Eq. 
Prac,  5th  ed.,  Sees.  157  and  168. 


No.  456. 

Stipulation  for  Interpleader. 

[Caption.] 

Whereas  the  defendants  herein,  Annie  M.  Phillips  and 
Murray  Phillips,  have  filed  their  answer  to  the  plaintiff's  peti- 
tion, and  whereas  said  answer  has  been  duly  considered  by 
the  counsel  both  for  the  plaintiff"  and  for  the  defendants ; 

It  is  now,  therefore,  stipulated  and  agreed,  by  the  counsel 
for  the  parties,  both  plaintiff  and  defendants,  that  for  the  pur- 
poses of  this  action  said  answer  of  the  said  defendants  shall 
be  taken  as  setting  forth  grounds  for  an  interpleader  to  be 
filed  in  this  cause  by  the  Commercial  Bank  of  New  Majdrid, 
Missouri,  the  claimant  named  in  the  said  answer  of  the  said 
defendants. 

Wherefore  the  parties,  plaintiff  and  defendants,  do  by  their 
counsel  request  this  honorable  court  to  make  an  order  com- 
manding the  defendants,  Annie  M.  Phillips  and  Murray  Phil- 
lips, to  pay  into  court  the  sum  of  money  set  forth  in  their 
answer  and  commanding  the  said  Commercial  Bank  of  New 
Madrid,  Missouri,  a  corporation,  to  come  in  and  show  cause, 
if  any,  why  said  sum  so  paid  into  this  court  by  the  said  de- 
fendants should  not  be  paid  over  to  the  plaintiff  in  accord- 
ance with  the  petition  filed  by  the  plaintiff  in  these  proceed- 
ings. 

Dated  at  St.  Louis,  Mo.,  this  12th  day  of  January,  1916. 

Chas.  Claflin  Allen  and 
Geo.  Breaker, 
'  Attorneys  for  Plaintiff. 

Riley  &  Riley  and 
Thomas  Gallivan, 

Attorneys  for  Defendant. 


BILLS    IN    SPECIAL    CASES.  637 

No.  457. 

Order  to  Interplead,  Etc. 
[Caption.] 

The  stipulation  made  and  entered  into  by  the  parties,  both 
plaintiff  and  defendants,  in  the  above  entitled  cause,  dated 
January  — ,  1916,  having  been  duly  considered  by  the  court 
and  the  court  being-  fully  advised  in  the  premises,  does  here- 
with order : 

First.  That  the  defendants,  Annie  M.  Phillips  and  Murray 
Phillips,  pay  into  the  clerk  of  this  court  the  sums  called  for 
in  the  petition  filed  by  the  plaintiff  in  this  cause,  together 
with  interest  thereon  to  the  date  of  this  order;  said  sum  to 
remain  in  the  hands  of  the  clerk,  abiding  the  orders  and 
directions  of  this  court. 

Second.  That  the  Commercial  Bank  of  New  Madrid,  Mis- 
souri, a  corporation  duly  organized  and  existing  under  the 
laws  of  the  state  of  Missouri,  and  having  its  principal  place 
of  business  in  the  town  of  New  Madrid,  and  county  of  New 
Madrid,  Missouri,  be  and  is  hereby  ordered  and  commanded 
to  interplead  in  this  cause,  and  show  cause,  if  any,  why  the 
money  tendered  into  court  in  accordance  with  this  order,  and 
claimed  by  the  plaintiff  in  his  petition  filed  in  this  cause, 
should  not  be  forthwith  paid  to  the  plaintiff,  together  with 
interest  thereon  in  accordance  with  the  terms  and  provisions 
of  the  note  which  is  the  subject-matter  of  this  action. 

Witness  my  hand  this  19th  day  of  January,  1916. 

David  P.  Dyer,  Judge. 


No.  458. 

Interplea  in  Suit  on  Promissory  Notes. 

[Caption.] 

First  Count. 

Comes  now  the  Commercial  Bank,  a  corporation  of  New 
Madrid,  Missouri,  leave  of  court  first  had  and  obtained,  and 
files  this  its  interplea  in  this  cause. 


638  SUITS    IN    EQUITY. 

Interpleader  states  that  it  was  at  all  times  hereinafter  men- 
tioned, and  now  is,  a  corporation  duly  organized  and  exist- 
ing and  doing  business  at  New  Madrid,  Missouri,  under  and 
by  virtue  of  the  laws  of  the  state  of  IMissouri,  and  admits  that 
Lloyd  England  is  the  duly  appointed  and  acting  receiver  of 
the  State  National  Bank  of  Little  Rock,  Arkansas. 

And   further  pleading  this  interpleader  states  that  on  the 

day  of  September,  1913,  it  was,  and  still  is,  the  owner 

of  a  certain  promissory  note  in  the  principal  sum  of  ten  thou- 
sand dollars  ($10,000),  made,  executed  and  delivered  to  it 
for  a  valuable  consideration  by  Murray  Phillips,  Jr.,  and 
Annie  M.  Phillips,  it  being  the  note  described  in,  and  upon 
which  this  plaintiff  instituted,  this  action. 

This  interpleader  further  states  that  the  State  National 
Bank  of  Little  Rock,  Arkansas,  plaintiff  herein,  made  and 
entered  into  an  agreement  with  this  interpleader,  by  the 
terms  of  which  said  agreement  the  said  State  National  Bank 
of  Little  Rock,  Arkansas,  was  to  take  the  promissory  note 
above  described  and  hold  the  same  until  requested  by  the 
interpleader  to  return  it  to  interpleader,  and  to  deliver  to  this 
interpleader  one  of  its  notes  for  like  amount  and  of  equal 
value  to  be  held  by  the  interpleader  until  the  note  delivered 
to  said  bank  was  returned  to  this  interpleader.  The  note  to 
be  delivered  by  the  said  bank  to  this  interpleader  was  to  be  a 
solvent  note. 

Interpleader  further  states  that  under  said  agreement  so 
entered  into  as  above  set  out  between  interpleader  and  the 
State  National  Bank  of  Little  Rock,  Arkansas,  and  for  no 
other  consideration  whate\er,  it  sent  the  note  herein  sued  on 
to  the  State  National  Bank  of  Little  Rock,  Arkansas,  and 
said  bank  received  said  note  and  acknowledged  receipt  of  the 
same.  And  said  State  National  Bank  of  Little  Rock,  Arkan- 
.sas,  sent  this  interpleader,  in  lieu  (;f  the  note  herein  sued 
on,  and  so  sent  to  said  bank  by  interpleader,  and  interpleader 
believed  in  accordance  with  the  terms  of  said  agreement,  a 
note  in  the  sum  of  $10,000,  executed  by  the  State  Trust 
Company,  a  corporation  of  Little  Rock,  Arkansas;  that  this 


BILLS    IN    SPECIAL    CASES.  639 

interpleader  believed  and  the  State  National  Bank  of  Little 
Rock,  Arkansas,  knew  that  this  interpleader  believed  and 
accepted  said  note,  believing  that  said  note  so  forwarded  to 
it  by  the  said  State  National  Bank  of  Little  Rock,  Arkansas, 
was  the  property  of  said  bank  and  had  been  passed  upon  by 
its  discount  board,  and  that  it  was  a  solvent  note,  and  ac- 
cepted the  same  believing  that  said  transaction  was  in  full 
compliance  with  the  agreement  entered  into  as  aforesaid,  and 
believing  the  representations  of  the  State  National  Bank  of 
Little  Rock,  Arkansas,  that  said  note  was  its  property  and 
was  a  solvent  note,  and  that  Murray  Phillips,  Jr.,  and  Annie 
M.  Phillips  note  would  be  returned  to  interpleader  by  the 
said  State  National  Bank  of  Little  Rock,  Arkansas,  upon  re- 
quest and  the  return  of  the  State  Trust  Company  note  to  said 
bank  by  said  interpleader.  All  of  which  the  State  National 
Bank  of  Little  Rock,  Arkansas,  at  the  time  said  transaction 
was  so  made  knew  was  untrue  and  false,  but  that  the  inter- 
pleader was  believing  the  same  to  be  true,  and  said  repre- 
sentations were  so  made  by  said  State  National  Bank  of  Little 
Rock,  Arkansas,  to  interpleader  with  the  intent  to  cheat  and 
defraud  interpleader  out  of  said  note ;  that  this  interpleader 
in  good  faith  returned  said  note  and  collateral  to  the  State 
National  Bank  of  Little  Rock,  Arkansas,  before  the  filing  of 
this  suit  and  demanded  the  return  of  the  note  herein  sued  on 
to  it  in  accordance  with  said  agreement,  and  that  said  bank 
in  furtherance  of  its  said  purpose  to  cheat  and  defraud  inter- 
pleader herein,  refused  to  accept  said  note  and  return  the 
Murray  Phillips,  Jr.,  and  Annie  M.  Phillips  note  to  inter- 
pleader herein,  as  it  had  agreed  to  do,  and  informed  inter- 
pleader that  said  note  was  never  the  property  of  the  State 
National  Bank  of  Little  Rock,  Arkansas;  and  until  so  in- 
formed the  interpleader  did  not  know  that  said  note  had 
never  been  the  property  of  the  State  National  Bank  of  Little 
Rock,  Arkansas,  and  did  not  know  that  said  note  was  worth- 
less, all  of  which  the  State  National  Bank  of  Little  Rock, 
Arkansas,  at  all  times  well  knew ;  that  said  note  of  the  State 
Trust  Company  of  Little  Rock,  Arkansas,  and  collateral  be- 


640  SUITS    IN    EQUITY. 

longing  thereto  is  filed  herewith,  made  a  part  hereof,  marked 
Exhibit  "A" ;  that  this  interpleader  immediately  upon  learn- 
ing the  facts  above  set  out  again  tendered  said  note  and  col- 
lateral to  the  State  National  Bank  of  Little  Rock.  Arkansas, 
and  demanded  the  return  of  the  Murray  Phillips,  Jr.,  and 
the  Annie  M.  Phillips  note  herein  sued  on,  and  it  was  again, 
by  the  said  State  National  Bank  of  Little  Rock,  Arkansas, 
refused,  and  interpleader  now  tenders  said  note  and  collateral 
belonging  thereto  filed  herewith,  into  court  to  be  returned  to 
the  receiver  representing  said  State  National  Bank  of  Little 
Rock,  Arkansas.  And  the  State  National  Bank  of  Little 
Rock,  Arkansas,  now  fraudulently  and  in  furtherance  of  its 
fraudulent  intent  to  cheat  and  defraud  this  interpleader  out  of 
said  Murray  Phillips,  Jr.,  and  Annie  M.  Phillips  note,  claims 
to  own  the  same  under  the  conditions  above  set  out. 

Wherefore  interpleader  prays  that  it  may  be  adjudged  to 
be  the  owner  of  said  Murray  Phillips,  Jr.,  and  Annie  M. 
Phillips  note  at  the  institution  of  this  action,  and  that  the 
court  order  the  proceeds  of  this  note  heretofore  paid  into 
court,  paid  to  this  interpleader  and  for  his  costs  in  this  behalf 
expended. 

Second  Count. 

And  for  a  further  cause  of  action  this  interpleader  says  it 
is  a  corporation  duly  organized,  existing  and  doing  a  general 
banking  business  under  the  laws  of  the  state  of  Missouri,  and 
admits  that  Lloyd  England  is  the  duly  appointed  and  acting 
receiver  of  the  State  National  Bank  of  Little  Rock,  Arkansas. 

Interpleader  further  says  that  the  note  sued  on  herein  was 
made,  executed  and  delivered  to  the  Commercial  Bank  of 
New  Madrid,  Missouri,  by  Murray  Phillips  and  Annie  M. 
Phillips,  for  a  valuable  consideration,  and  that  said  note  is 
now  the  property  of  this  interpleader  and  that  said  note  was 
delivered  to  the  State  National  Bank  of  Little  Rock,  Arkan- 
sas, by  interpleader  herein  without  any  consideration  what- 
ever passing  from  the  plaintiff  herein,  or  the  State  National 
Bank  of  Little  Rock,  Arkansas,  to  the   interpleader  herein; 


BILLS    IN    SPECIAL    CASES.  641 

and  interpleader  says  that  there  was  no  consideration  what- 
ever for  the  transfer  of  said  note  to  the  State  National  Bank 
of  Little  P.ock,  Arkansas,  and  that  interpleader  is  the  owner 
and  entitled  to  the  proceeds  of  the  Murray  Phillips  and  Annie 
M.  Phillips  note,  being  the  note  sued  on  herein  by  plaintiff. 

Wherefore  interpleader  prays  the  court  that  it  be  adjudged 
the  owner  of  the  Murray  Phillips,  Jr.,  and  Annie  M.  Phillips 
note  herein  sued  on,  and  that  the  proceeds  thereof  heretofore 
paid  into  court  be  ordered  paid  to  this  interpleader  herein. 

Third  Count. 
And  for  further  cause  of  action  this  interpleader  says  it  is 
a  corporation  duly  organized,  existing  and  doing  a  general 
banking  business  under  the  laws  of  the  state  of  Missouri ;  and 
admits  that  Lloyd  England  is  the  duly  appointed  and  acting 
receiver  of  the  State  National  Bank  of  Little  Rock,  Arkansas, 
but  denies  each  and  every  other  allegation  in  plaintiff's  peti- 
tion contained,  and  having  fully  answered  prays  to  be  dis- 
missed with  its  costs.  A.  B.  and  C.  D., 

Attorneys  for  Interpleader. 


No.  459. 

Prayer  of  a  Bill  of  Interpleader. 

And  that  the  said  several  defendants  may  be  decreed  to 
interplead  touching  their  said  several  claims,  and  that  plain- 
tiff may  be  at  liberty  to  pay  the  several  sums  now  justly  and 
fairly  due  from  him  for  the  rent  of  the  said  messuage  or 
tenement  and  premises  into  the  bank,  in  the  name  and  with 
the  privity  of  the  accountant  general  of  this  honorable  court, 
in  trust  for  the  benefit  of  the  persons  or  person  entitled 
thereto,  subject  to  the  further  order  of  this  court,  after  de- 
ducting thereout  in  the  first  place  the  aforesaid  sum  of  £36, 
to  be  allowed  unto  plaintiff,  for  repairs  pursuant  to  the  said 


642  SUITS    IN    EQUITY. 

agreement,  together  with  all  sums  of  money  expended  and 
advanced  by  plaintiff  for  land  tax  and  other  necessary  out- 
goings in  respect  of  the  said  premises.  And  that  plaintiff 
may  be  at  liberty  to  quit  the  possession  of  the  said  premises, 
and  that  possession  thereof  may  be  delivered  up  to  such  per- 
son or  persons  as  this  honorable  court  shall  direct  or  appoint. 
And  that  plaintiff  may  have  a  satisfaction  or  allowance  made 
unto  him  out  of  the  rent  of  the  said  premises  for  the  several 
articles  hereinbefore  and  in  the  said  first  agreement  particu- 
larly mentioned,  which  have  been  provided  by  plaintiff  at  his 
own  expense  for  the  said  premises.  And  that  in  the  mean- 
time the  said  defendants,  S.  O.  and  T.  C,  may  be  restrained 
by  the  order  or  injunction  of  this  honorable  court  from  all 
further  proceedings  in  the  aforesaid  action  of  ejectment 
brought  against  plaintiff,  and  that  they  and  all  the  said  other 
defendants  may  be  in  like  manner  restrained  from  making 
any  distresses  or  distress  upon  the  said  messuage  or  tenement 
and  premises,  and  from  commencing  or  prosecuting  any  ac- 
tion or  actions  at  law  against  plaintiff  to  recover  the  rent  of 
the  said  premises,  or  to  turn  plaintiff  out  of  possession  there- 
of, or  otherwise  from  proceeding  at  law  against  plaintiff 
touching  any  one  of  the  matters  aforesaid.  And  that  all 
proper  and  necessary  directions  may  be  given  for  the  pur- 
poses aforesaid.     [And  for  further  relief.] 


No.  460. 

Form  of  Affidavit  to  be  Annexed  to  a  Bill  of  Interpleader. 

The  said  J.  C.  maketh  oath  and  saith  that  he  has  exhibited 
his  bill  of  interpleader  against  the  defendants  in  this  cause 
without  anj  fraud  or  collusion  between  him  and  the  said  de- 
fendants, or  any  or  either  of  them ;  and  that  he,  the  said  J.  C, 
hath  not  exhibited  his  said  bill  at  the  request  of  the  said  de- 
fendants, or  of  any  or  of  either  of  them,  and  that  he  is  not 


BILLS    IN    SPECIAL    CASES.  643 

indemnified  by  the  said  defendants,  or  by  any  or  either  of 
them,  and  saith  that  he  has  exhibited  his  said  bill  with  no 
other  intent  but  to  avoid  being  sued  or  molested  by  the  said 
defendants,  who  are  proceeding  or  threaten  to  proceed  at  law 
against  him  for  the  recovery  of  the  rent  of  the  said  tithes  in 
the  said  bill  mentioned.  J.  C. 

Sworn,  etc. 


No.  461. 

Another  Form  of  Affidavit. 

A.  B.,  the  above-named  plaintiff,  maketh  oath  and  saith 
that  he  doth  not  in  any  respect  collude  with  either  of  the 
above-named  defendants  touching  the  matters  in  question  in 
this  cause,  nor  is  he  in  any  manner  indemnified  by  the  said 
defendants,  or  either  of  them,  nor  hath  he  exhibited  his  said 
bill  of  interpleader  at  the  request  of  them,  or  either  of  them, 
but  merely  of  his  own  free  will,  and  to  avoid  being  sued  or 
molested  touching  the  matters  contained  in  his  said  bill. 

Sworn,  etc.  A.  B. 


No.  462. 

'  Still  Another  Form. 

I.  A.  B.,  the  above-named  plaintiff,  make  oath  and  say 
that  the  bill  in  this  suit  [or,  the  bill  hereunto  annexed]  is  not 
filed  by  me  in  collusion  with  any  or  either  of  the  defendants 
in  the  said  bill  named,  but  such  bill  is  filed  by  me  of  my  own 
accord  for  relief  in  this  honorable  court. 

Sworn,  etc.  A.  B. 


644  SUITS    IN    EQUITY. 

No.  463. 

Against  an  Agent  for  Mismanagement. 
[Caption  and  introduction.] 

That  in  the  month  of he  was  the  owner  of  a  certain 

ship  or  vessel  called  the ,  then  lying  in  the  port  of , 

bound  on  a  voyage  to  ,  in  the  state  of  ,  and  that 

being  desirous  to  procure  a  cargo  of  goods  and  merchandise 
to  be  carried  to  said  ,  in  said  vessel  on  freight,  he  ap- 
plied to  said  C.  &  D.,  who  were  engaged  in  that  line  of  busi- 
ness, to  obtain  a  cargo  for  said  vessel  on  freight,  and,  as  a 
compensation  for  their  services  in  so  doing,  agreed  to  pay 
them  a  commission  of  five  per  centum  on  the  amount  of  the 
freight  and  primage  of  such  goods  and  merchandise  as  they 
should  procure  to  be  shipped  on  board  of  the  said  ship,  in 
consideration  of  which  they  agreed  to  act  as  his  agents  in  the 
premises,  and  to  make  use  of  their  knowledge,  skill  and 
ability  to  procure  a  full  cargo  for  said  vessel  on  freight,  and 
that  accordingly  the  lading  and'  procurement  of  freight  were 

intrusted  to  them,  and  in  said  month  of ,  and  the  ensuing 

months  of  and  ,  they  did  procure  a  cargo  for  said 

vessel,  and  in  the  month  of she  set  sail  and  departed  on 

her  voyage  for  said . 

That  on  or  about  the day  of  said ,  said  C.  &  D. 

sent  to  plaintiff  a  freight  list,  or  statement  of  the  amount 
of  merchandise  laden  on  board  of  the  said  vessel,  and  of  the 
rates  of  freight  thereof,  and  of  the  sums  of  money  to  be 
earned  and  paid  on  the  carriage  and  delivery  thereof  at  said 

port  of  (which  said  freight  list  plaintiff  prays  leave  to 

file  in  court  as  a  part  of  this  bill),  by  which  it  appears  that 
all  the  merchandise  laden  on  board  of  the  said  ship  was 
shipped  at  specific  rates  of  freight  therein  set  down,  and  that 
the  total  amount  of  freight,  including  primage,  was  the  sum 

of dollars,  upon  which  sum  the  said  C.  &  D.  claimed  of 

plaintiff,  and  he  paid  to  them,  a  commission  of  five  per 
centum,  amounting  to  the  sum  of dollars,  together  with 


BILLS    IN    SPECIAL    CASES.  645 

Other  charges  for  advertising,  and  so  forth,  as  by  their  bill 
herewith  also  filed,  in  the  full  belief,  and  relying  on  the  assur- 
ance of  the  said  C.  &  D.,  made  by  sending  him  the  said 
freight  list  and  otherwise,  that  the  merchandise  therein  men- 
tioned had  been  actually  laden  on  board  of  the  said  vessel, 
to  be  carried  and  delivered  at  and  for  the  rates  of  freight 
therein  specified. 

That  the  said  ship  was  consigned  to  certain  persons  doing 

business  at  said  ,  under  the  firm  of  S.  &  M.,  who,  upon 

the  arrival  of  said  vessel  in  the  month  of  ,  attended  to 

the  unlading  and  discharge  of  the  cargo,  the  collection  of  the 
freight  and  the  remittance  thereof  to  plaintiff.  That  upon 
such  discharge  and  delivery  it  appeared  that  fifty-seven  -||^ 
tons  of  pig-iron,  which  in  the  said  freight  list  were  specified 

as  shipped  at  the  rate  of dollars  per  ton,  and  the  freight 

of  which  was  therein  stated  to  amount  to  dollars,  and 

one  hundred  and  thirty-three  nests  tubs,  two  hundred  nests 
tubs,  and  seventy-five  dozen  pails,  which  in  said  freight  list 
were  specified  as  shipped  at  and  for  the  freight  or  compensa- 
tion of dollars,  were  not  shipped  at  such  rates  of  freight, 

but  the  rate  of  freight  specified  therefor,  in  the  bills  of  lading 
thereof  (which  were  not  signed  by  the  master  of  said  ship, 
but  by  the  said  C.  D.,  who  assumed  to  act  as  his  agent  in 
that  behalf  without  his  knowledge  or  consent)  was  "one-half 
net  profits  over  costs  and  charges";  that  the  said  iron,  tubs 
and  pails,  as  plaintiff  is  informed  and  alleges,  could  not  be 
sold  at  any  profit,  and  that  the  said  S.  &  M.  did  not  collect, 
and  plaintiff  has  not  received,  any  freight  or  compensation 
for  the  carriage  and  delivery  thereof  at  said . 

That  upon  receiving  information  from  the  said  S.  &  M. 
of  the  fact  that  said  iron,  tubs  and  pails  were  shipped  on  half 
profits  instead  of  the  rates  of  freight  stated  in  said  freight 
list,  plamtiff  immediately  advised  the  said  C.  &  D.  that  he 
held  them  responsible  for  the  amount  of  freight  at  which 
they  had  represented  that  the  same  were  shipped,  and  upon 
which  they  had  charged  and  been  paid  their  full  commission, 


646  SUITS    IN    EQUITY. 

and  requested  payment  thereof,  which  they  refused  to  make. 

That  the  commission,  agency  and  trust,  for  which  plaintiff 
retained  said  C.  &  D.,  was  to  procure  a  cargo  for  said  vessel 
to  be  carried  and  delivered  on  payment  of  freight  in  money 
at  specified  rates,  and  not  upon  half  profits;  that  the  said 
C.  &  D.  represented  to  plaintifif  that  they  had  obtained  and 
shipped  a  cargo,  upon  the  delivery  of  which  plaintiff  would 
be  entitled  to  receive  the  sums  of  money  as  freight  thereof 
specified  in  the  said  freight  list;  that  said  C.  &  D.  demanded 
of  plaintifif  a  commission  on  the  amount  thereof,  as  so 
shipped,  and  that  plaintiff  paid  them  said  commission,  in  the 
full  belief  and  relying  upon  their  assurance,  contained  in  said 
freight  list,  that  the  various  articles  therein  mentioned  were 
shipped  at  the  rates  of  freight  therein  specified,  and  that  upon 
the  safe  delivery  thereof  plaintiff  would  be  entitled  to  receive 
the  same  in  money. 

That  the  said  iron,  tubs  and  pails  were  safely  carried  to 

,  and  delivered  to  the  consignees  thereof,  and  that  upon 

such  delivery  plaintiff  had  earned  and  was  entitled  to  be  paid 
for  such  service  the  rates  of  freight  and  sums  of  money 
specified  in  the  said  freight  list,  the  same  being  the  usual 
and  current  rates  of  freight  upon  the  amounts  of  which,  as 
such,  the  said  C.  &  D.  charged  their  commissions  as  afore- 
said ;  that  by  reason  of  their  undertaking  to  carry  and  deliver 
the  same  upon  half  profits  instead  of  on  freight  plaintiff  has 
lost  the  sums  of  money  to  which  he  should  have  been  entitled, 
and  to  which  the  said  C.  &  D.  represented  that  he  would  be 
entitled,  on  the  delivery  thereof,  and  has  not  received  and  is 
not  entitled  to  claim,  by  reason  of  their  said  doings,  any  com- 
pensation from  the  owners  or  consignees  of  the  said  goods 
and  merchandise  for  the  cost  and  expense  of  their  transporta- 
tion and  delivery ;  and  that  by  reason  of  the  premises,  and  of 
the  representation  made  that  the  said  goods  and  merchandise 
were  shipped  at  the  rates  of  freight  specified  in  the  said 
freight  list,  the  said  C.  &  D.  are  bound  to  make  good  the  loss 
plaintiff  has  suffered  by  their  said  doings,  and  to  pay  him  the 


BILLS    IN    SPECIAL    CASES.  647 

sums  of  money  which  he  would  have  received  if  the  said 
goods  and  merchandise  had  been  shipped  at  the  rates  specified 
in  said  freight  list,  and  plaintiff  has  repeatedly  requested 
them  so  to  do;  but  the  said  C.  &  D,  absolutely  refuse  to 
comply  with  such  request. 

To  the  end,  therefore,  that  they,  the  said  C.  &  D.,  may  be 

decreed  to  pay  to  plaintiff  the  said  sums  of dollars,  and 

(1)  dollars,  and  such  losses,  damages  and  interest  as  he 

has  suffered  by  reason  of  the  premises,  and  that  plaintiff  may 
have  such  other  relief  as  the  nature  of  his  case  may  require, 
and  that  the  said  C.  &  D.  may,  if  they  can,  show  why  plain- 
tiff should  not  have  the  relief  hereby  prayed,  and  may  upon 
their  several  corporal  oaths,  and  to  the  best  of  their  knowl- 
edge and  belief,  make  answer  to  all  and  singular  the  premises. 

X.  &  X.,  Solicitors  for  Plaintiff.  A.  B. 

[Verification.] 

(1)  See  Judicial  Code,  Sec.  24,  for  jurisdictional  amount. 


No.  464. 

Bill  to  Enjoin  a  Combination  Under  Sherman  Anti-Trust 

Act.(l) 
The   Circuit   Court  of  the   United   States   for  the   Southern 
Division  of  the  Eastern  District  of  Tennessee. 

In  Equity. 

To  the  Judges  of  the  Circuit  Court  of  the  United  States  for 
the Division  of  the District  of . 

The  United  States,  by  the  Attorney  General  of  the  United 
States,  and  J.  H.,  the  United  States  Attorney  for  the 
District  of ,  brings  this  its  petition 

against 

The  Addyston  Pipe  &  Steel  Company,  a  corporation  char- 
tered by  and  doing  business  under  the  laws  of  the  state  of 


(548  SUITS    IN    EQUITY. 

Ohio,  and  a  resident  of  said  state,  with  its  principal  office 
in  the  city  of  Cincinnati,  in  said  state;  Dennis  Long  & 
Co.,  a  corporation  (or  partnership)  chartered  by  and  do- 
ing business  under  the  laws  of  the  state  of  Kentucky,  a 
resident  of  said  state,  with  its  principal  office  in  the  city 
of  Louisville,  Kentucky;  Howard-Harrison  Iron  Com- 
pany, a  corporation  chartered  by  and  doing  business  un- 
der the  laws  of  the  state  of  Alabama,  and  a  resident  of 
said  state,  with  its  principal  office  at  Bessemer,  Alabama; 
Anniston  Pipe  &  Foundry  Company,  a  corporation  char- 
tered by  and  doing  business  under  the  laws  of  the  state 
of  Alabama,  and  a  resident  of  said  state,  with  its  prin- 
cipal office  at  Anniston,  Alabama;  South  Pittsburg  Pipe 
Works,  a  corporation  chartered  by  and  doing  business 
under  the  laws  of  the  state  of  Tennessee,  and  a  resident 
of  said  state,  with  its  principal  office  at  South  Pittsburg, 
Tennessee;  Chattanooga  Foundry  &  Pipe  Works,  a  cor- 
poration chartered  by  and  doing  business  under  the  laws 
of  the  state  of  Tennessee,  and  a  resident  of  said  state, 
with  its  princapl  office  at  Chattanoga,  Tennessee. 
Petitioner  charges : 

First.  That  defendants,  and  each  of  them  are  and  have 
been  for  several  years  engaged  in  the  manufacture  of  cast 
iron  pipe,  a  commodity  in  general  use  by  the  public  through- 
out the  country,  and  necessary  for  drainage  and  sewerage 
purposes,  and  used  especially  by  gas  and  water  companies 
and  by  municipal  corporations. 

Second.  Defendants  are  all  residents  of  that  portion  of 
the  country  where  pig  iron  and  fuel  and  all  elements  enter- 
ing into  the  production  of  cast  iron  pipe  are  cheaper,  and 
where  said  cast  iron  pipe  can  be  made  at  less  cost  to  the  man- 
ufacturer than  any  place  else. 

Third.  Petitioner  further  charges  that  defendants  are  the 
only  persons  engaged  in  the  manufacture  of  cast  iron  pipe, 
and  who  have  capacity  to  supply  the  demand  and  fulfill  the 


BILLS    IN    SPECIAL    CASES.  649 

contracts,  in  the  following  states  and  territories,  to  wit: 
Alabama,  Arizona,  California,  Colorado,  North  Dakota, 
South  Dakota,  Florida,  Georgia,  Idaho,  Kansas,  Kentucky, 
Louisiana,  Mississippi,  Missouri,  Montana,  Nebraska,  Indian 
Territory,  North  Carolina,  South  Carolina,  New  Mexico, 
Minnesota,  Michigan,  Tennessee,  Texas,  Illinois,  Wyoming, 
Indiana,  Ohio,  Utah,  Washington,  Oregon,  Iowa,  West  Vir- 
ginia, Nevada,  Oklahoma  and  Wisconsin,  being  36  states  and 
territories,  and  embracing  that  portion  of  the  United  States 
that  is  most  rapidly  developing,  and  where  said  cast  iron  pipe 
is  most  largely  used.  There  are  a  few  other  pipe  works  lo- 
cated in  the  above  territory,  but  for  want  of  capacity  they  are 
unable  to  compete  with  defendants,  and  by  reason  of  the  con- 
duct on  the  part  of  defendants  hereinafter  mentioned,  they 
have  been  practically  driven  out  of  the  market  in  said  terri- 
tory. 

Fourth.  Petitioner  charges,  upon  informatioii  that  it  be- 
lieves to  be  true,  that  defendants,  in  order  to  monopolize  the 
trade  in  cast  iron  pipe,  especially  in  the  above-named  states 
and  territories,  and  force  the  price  of  the  same  to  an  unrea- 
sonable and  exorbitant  rate,  and  destroy  all  competition  in 
regard  thereto,  and  force  the  public  to  pay  exorbitant  and 
unreasonable  prices  for  said  cast  iron  pipe,  did,  on  or  about 
the  28th  day  of  December,  1894,  in  the  city  of  Chattanooga, 
Tennessee,  by  and  through  their  regular  appointed  and  qual- 
ified officers,  agents  and  representatives,  enter  into  a  contract 
or  combination,  in  the  form  of  trust  or  conspiracy,  in  re- 
straint of  trade  or  commerce  among  the  several  states  and  ter- 
ritories above  named,  in  regard  to  the  manufacture  and  sale 
of  said  cast  iron  pipe,  which  said  fraudulent  and  criminal  con- 
spiracy was  entered  into  in  violation  of  law,  and  in  defiance 
of  the  same,  and  was  intended  by  defendants  to  enable  them 
to  defraud  the  public  in  the  purchase  and  use  of  the  pipe  man- 
ufactured by  them.  The  name  of  this  criminal  and  unlawful 
conspiracy  is  the  "  Associated  Pipe  Works,"  and  its  members 


650  SUITS    IN    EQUITY. 

are  the  defendants  above  named.  Petitioner  charges,  upon 
information  and  belief,  that  defendants  are  now,  and  have 
been  since  said  28th  day  of  December,  1894,  operating  their 
shops  in  obedience  to  and  according  to  the  agreement  en- 
tered into  on  said  date,  and  are  now  engaged  in  selling  and 
shipping  from  their  shops  said  cast  iron  pipe  into  other  states 
and  territories  than  the  states  and  territories  in  which  defend- 
ants reside,  and  under  contracts  entered  into  with  citizens 
of  such  other  states  and  territories. 

Fifth.  Petitioner  further  charges  that  it  was  a  part  of  said 
fraudulent  and  criminal  combination  and  conspiracy  afore- 
said, that  there  should  be  no  competition  among  defendants  as 
to  any  work  done  or  pipe  furnished  in  any  of  the  states  and 
territories  above  named,  and  in  order  to  make  effectual  this 
criminal  purpose,  it  was  agreed  that  upon  all  work  done  in 
the  territory  named,  a  "bonus"  should  be  charged  on  every 
ton  of  pipe  sold,  the  amount  of  said  "  bonus  "  being  deter- 
mined by  how  much  the  combination  could  force  the  customer 
to  pay,  and  petitioner  here  charges  that  defendants  have  col- 
lected a  "  bonus  "  ranging  from  three  to  nine  dollars  on  every 
ton  of  pipe  sold  since  the  date  the  trust  was  formed.  The 
"  bonus  "  represents  the  amount  charged  for  pipe  over  and 
above  a  reasonable  and  fair  price  for  same,  and  above  the 
price  that  defendants  would  be  willing  to  sell  for,  if  the  trust 
or  combination  did  not  exist,  and  they  have  to  compete  with 
each  other  for  the  work. 

Petitioner  charges  that  the  output  of  the  shops  belonging 
to  the  six  defendants  above  named,  amounts  to  about  220,000 
tons  of  pipe  annually,  and  this  multiplied  by  the  average 
"  bonus "  received,  of  six  dollars  per  ton,  amounts  to  one 
million  three  hundred  and  twenty  thousand  dollars,  so  your 
honors  may  get  some  idea  of  the  immense  benefits  derived  by 
defendants  from  their  fraudulent,  criminal  and  unlawful  com- 
bination, and  see  to  what  extent  the  public  has  been,  and  is 


BILLS    IX    SPECIAL    CASES. 


651 


being,  robbed  and  plundered  by  reason  of  the  existence  of  the 
trust  aforesaid. 

Petitioner  is  informed  and  believes,  and  upon  such  informa- 
tion charges,  that  the  amount  of  pipe  sold  and  shipped  by 
defendants  for  this  year,  1896,  will  exceed  said  amount  of 
220,000  tons,  nearly  all  of  which  has  been  sold  and  shipped 
according  to  the  terms  and  under  the  agreement  entered  into 
between  defendants  on  said  28th  day  of  December,  1894; 
and  defendants  are  still  and  now  engaged  in  the  sale  and  ship- 
ment of  the  same  to  the  states  and  territories  other  than  in 
which  they  reside. 

Sixth.  The  above-named  states  and  territories  were  desig-^ 
nated  by  defendants  in  their  conspiracy  as  "  pay  territory  " 
and  all  territory  not  included  in  the  above  was  called  "  free 
territory.''  In  "  pay  territory,"  except  as  to  certain  cities, 
known  as  "  reserved  cities  "  where  all  the  pipe  was  to  be  fur- 
nished, by  some  particular  shop,  a  "  bonus  "  of  so  much  per 
ton  was  fixed  on  all  pipe  sold  and  either  of  defendants  were 
allowed  to  solicit  work  and  furnish  pipe  at  any  price  it  saw 
proper,  but  it  had  to  account  to  the  pool  or  trust,  for  the 
"  bonus  "  agreed  upon  for  that  particular  state.  It  made  no 
difference  at  what  price  the  work  was  done,  and  these  "  bo- 
nuses "  were  remitted  from  one  to  another  every  two  weeks, 
each  sharing  in  the  profit  represented  by  the  "  bonus,"  al- 
though they  may  have  had  nothing  to  do  with  the  work.  This 
arrangement  kept  one  from  competing  with  the  other,  the  in- 
centive not  to  do  so  being  that  they  would  divide  the  "  bonus  ** 
received,  and,  as  petitioner  charges,  prevented  the  public  from 
obtaining  the  pipe  at  a  fair  and  reasonable  price. 

Seventh.  To  make  said  fraudulent  and  unlawful  criminal 
conspiracy  effectual,  and  in  order  to  deprive  the  public  of 
their  right  to  obtain  said  cast  iron  pipe  at  a  fair  and  reason- 
able price,  petitioner  further  charges  that  it  was  a  part  of  the 
agreement  that  defendant  should,  at  once,  notify  all  parties  to 
whom  they  had  made  quotations,  withdrawing  the  same,  and 


652  SUITS   IN    EQUITY. 

accept  no  orders  after  that  date  on  quotations  sent  out  be- 
fore the  conspiracy  was  entered  into,  and  petitioner  charges 
that  said  defendants  did,  at  once,  withdraw  said  quotations 
where  they  had  sent  them  out,  and  at  once  prepared  new 
quotations  for  the  territory  embraced  in  their  combine,  ad- 
vancing the  price  of  pipe  from  three  to  nine  dollars  on  every 
ton,  and  this  too,  at  a  time  of  untold  financial  depression,  and 
when  there  had  been  no  increase  in  the  wages  of  labor,  or  the 
cost  of  any  of  the  materials  used  in  the  manufacture  of  said 
pipe,  and  they  have  been  receiving  this  price  for  their  pipe 
from  that  date  ^o  the  present  time. 

Eighth.  It  was  furthermore  a  part  of  said  fraudulent  com- 
bination, which  petitioner  avers  has  been  strictly  carried  out, 
that  all  the  pipe  for  certain  cities  in  the  above-named  territory 
was  to  be  divided  between  defendants.  For  instance,  An- 
niston  Pipe  Works  was  to  supply  Atlanta;  Howard-Harrison 
Iron  Company,  Birmingham  and  St.  Louis;  Chattanooga 
Foundry  &  Pipe  Works,  Chattanooga  and  New  Orleans; 
South  Pittsburg  Pipe  Works,  Omaha;  Dennis  Long  &  Co., 
Louisville  and  certain  cities  in  Indiana ;  while  Addyston  Pipe 
&  Steel  Co.  was  to  supply  Cincinnati  and  certain  other  cities 
in  Ohio  and  Kentucky.  Petitioner  does  not  pretend  to  give 
all  the  cities  allotted  under  said  criminal  agreement. 

Petitioner  charges  that  when  an  inquiry  was  received  by 
defendants  for  work  in  any  of  the  "  reserved  cities  "  they,  of 
course,  knowing  which  of  defendants  was  to  have  the  job, 
would  at  once  ask  the  defendant  to  whom  the  city  was  al- 
lotted what  price  to  "  protect,"  as  it  was  called,  meaning 
thereby  to  ask  said  shop  to  notify  it  what  its  bid  would  be,  so 
that  a  higher  bid  might  be  sent  in.  On  receipt  of  such  an 
inquiry  the  defendant  that  was  to  do  the  work  would  at  once 
notify  all  the  other  defendants  the  price  it  intended  to  bid,  or 
at  which  it  wanted  "  protection,"  and  the  other  defendants 
would  each  send  in  a  bid  at  some  higher  figures,  insuring  the 
job  to  the  defendant  agreed  upon,  and  insuring  to  themselves 


BILLS    IN    SPECIAL    CASES.  553 

a  division  of  a  large  "  bonus  "  and  making  the  price  to  the 
consumer  unfair  and  unreasonable,  and  destroying  all  competi- 
tion in  regard  thereto. 

Ninth.  Petitioner  further  shows  and  charges  that  the  kinds 
of  contracts  secured  by  defendants  are,  in  the  main,  contracts 
to  furnish  pipe  to  gas  and  water  companies,  and  to  municipal 
corporations  for  sewerage  and  other  purposes,  which  said 
contracts,  after  advertisements  for  bids,  are  let  to  the  lowest 
bidders.  Petitioner  would  show  to  the  court  that  said  gas 
and  water  companies  and  said  municipal  corporations,  together 
with  the  public  generally,  being  entirely  ignorant  of  the 
fraudulent  and  unlawful  manner  by  which  defendants  make 
their  bids  and  secure  said  contracts,  and  having  been  so  ig- 
norant since  said  combination  was  entered  into,  and  having  no. 
knowledge  of  such  combination,  have  been  applying  in  good 
faith  to  each  of  defendants  to  furnish  a  bid  at  which  it  would 
do  certain  work,  and  since  said  date  of  Dec.  28th,  1894,  said 
defendants  have  been  fraudulently  and  criminally  securing 
about  the  entire  work  in  the  territory  named,  and  ,at  the  ex- 
orbitant and  unreasonable  prices  above  mentioned. 

Tenth.  Petitioner  charges  upon  information  it  believes  to 
be  true,  that  there  are  no  other  pipe  works  in  the  territory 
where  the  conspiracy  exists  between  defendants,  that  were  able 
to  handle  the  large  contracts  for  pipe  which  defendants  have 
secured  since  the  combination  existed,  by  reason  of  the  want 
of  capacity  and  money  to  carry  on  said  work  on  the  part  of 
such  shops  not  in  the  combination. 

Petitioner  further  shows  and  charges  that  defendants  have 
large  sums  of  money,  aggregating  many  millions  of  dollars, 
invested  in  the  manufacture  of  pipe,  and  are  able,  many  of 
them  alone,  to  fill  contracts  of  any  size,  and  in  fact  have  fur- 
nished pipe  where  the  job  amounted  to  over  one  hundred 
thousand  dollars,  and  by  reason  of  the  fraudulent  and  unlaw- 
ful manner  in  which  they  secured  the  contract,  have  divided 
a  "  bonus  "  of  not  less  than  seven  dollars  on  each  ton  of  pipe 


(554  SUITS    IN    EQUITY. 

furnished  in  said  large  contracts,  so  petitioner  charges  that 
by  reason  of  the  great  wealth  of  defendants,  and  the  inability 
of  any  and  all  others  engaged  in  manufacturing  pipe  in  the 
territory  above  named,  and  by  reason  of  the  unlawful  means 
resorted  to  by  defendants,  they  have  created  a  monopoly  in 
the  sale  of  cast  iron  pipe  in  said  territory  and  have  crippled 
and  destroyed  all  smaller  concerns  engaged  in  the  manufacture 
of  pipe. 

Eleventh.  Petitioner  would  further  show  to  the  court,  and 
charge  that  defendants,  on  or  about  the  27th  day  of  May, 
1895,  to  enable  them  to  realize  greater  profits  to  themselves 
on  the  sale  of  their  pipe,  and  to  make  the  monopoly  in  their 
territory  on  the  use  and  sale  of  the  same,  more  complete,  and 
•to  more  fully  effectuate  the  conspiracy  entered  into  on  said 
28th  day  of  December,  1894,  adopted  what  they  called  the 
"  Auction  Pool  "  plan  for  bidding  on  work  in  .the  "  pay  terri- 
tory." To  carry  this  out,  each  of  defendants  selected  one 
man,  and  the  six  men  selected  constituted  an  executive  com- 
mittee, which  said  committee  was  to  be  located  in 
some  central  city,  at  present  at  Chicago,  to  whom  all  inquiries 
for  pipe  were  to  be  referred.  On  receipt  of  such  inquiry,  this 
committee,  in  a  room  with  no  one  present  but  themselves,  se- 
cretly and  fraudulently  bid  for  the  job,  the  one  agreeing  to  pay 
the  greatest  amount  of  "  bonus  "  of  course  to  receive  it.  By 
this  secret,  and  fraudulent  and  criminal  manner,  petitioner 
charges  all  the  work  done  by  defendants  since  June  i,  1895, 
has  been  secured.  After  this  "  auction  pool  "  was  over,  as  to 
each  particular  job,  each  of  the  defendants  was  notified  whose 
representative  had  bid  the  most,  and  the  amount  of  the  bid, 
and  this  bid  was  sent  by  the  defendant  securing  the  job  at  the 
"  auction  pool  "  to  the  party  wanting  the  pipe,  the  other  de- 
fendants all  sending  in  a  bid  for  a  higher  price,  carrying  out 
their  criminal  agreement  to  "  protect "  each  other,  and  secur- 
ing the  job  to  the  highest  bidder  at  the  "  auction  pool,"  thus 
reversing  the  order  of  things,  by  giving  the  job  to  the  highest, 


BILLS    IN    SPECIAL    CASES.  655 

instead  of  the  lowest  bidder,  the  deluded  customer  of  course 
being  ignorant  as  to  the  manner  in  which  he  is  being  swindled. 
Twelfth.  As  an  example  of  the  unequaled  and  unmitigated 
criminal  conduct  on  the  part  of  defendants,  and  the  great 
amounts  of  money  they  have  swindled  the  public  out  of,  by 
reason  of  their  trust  and  criminal  conspiracy,  petitioner  will 
give  one  instance,  among  the  many  hundred,  which  it  charges 
to  be  true  in  every  particular :  The  municipal  corporation  of 
the  city  of  St.  Louis,  Mo.,  wanted  about  5,000  tons  of  cast 
iron  pipe  during  the  early  part  of  the  present  year  of  1896. 
Under  the  "  auction  pool  "  system,  as  petitioner  is  informed 
and  believes,  and  so  charges,  the  "reserved  cities,"  hereinbefore 
mentioned  were  left  practically  the  same  as  under  the  fixed 
"  bonus  "  system,  there  being  a  different  arrangement  agreed 
upon  as  to  the  "  bonus,"  in  some  way,  but  the  pipe  for  the 
particular  cities  named  to  be  supplied  as  originally  agreed 
upon.  Under  the  agreement,  the  pipe  for  the  city  of  St. 
Louis  was  still  to  be  furnished  by  defendants,  Hoard-Harrison 
Iron  Company.  Allowing  a  reasonable  and  fair  profit,  the 
price  of  the  pipe  wanted  by  St.  Louis  was  at  that  time,  at  the 
shops  at  Bessemer,  Ala.,  from  $13  to  $15  per  ton.  The 
freight  to  St.  Louis  from  Bessemer  was  $3  per  ton,  so  that  de- 
fendant, Howard-Harrison  Iron  Company,  could  afford  to  sell 
said  5,000  tons  of  pipe  delivered  in  St.  Louis  at  from  $16  to 
$18  per  ton.  The  city  of  St.  Louis  made  inquiry  of  defend- 
ants for  the  pipe,  and  requested  them  to  send  in  bids  for  the 
work,  and  when  said  inquiries  were  received  by  defendants 
they  were  at  once  forwarded  to  the  "  auction  pool "  for  the 
mysterious  action  of  the  executive  committee  aforesaid,  acting 
for  defendants.  The  character  of  the  bidding  at  this  "  auction 
pool,"  and  behind  closed  doors,  is  not  known  to  petitioner,  and 
whether  the  same  was  free,  fair  (?)  and  open,  and  very 
animated,  and  whether  each  defendant,  as  represented  by  its 
member  of  said  executive  committee,  was  taking  care  of  itself, 
or  whether  all  were  bent  and  united  on  swindling  the  city  of 


656  SUITS    IN    EQUITY. 

St.  Louis  to  their  common  profit,  may  never  be  known;  but 
one  thing  is  certain,  and  petitioner  so  charges,  defendant, 
Howard-Harrison  Iron  Company  was  the  highest  bidder  at 
the  "  auction  pool  "  and  the  job  was  knocked  down  to  it  at 
the  price  of  $24  per  ton,  and  thereupon  it  sent  in  its  bid  at 
this  price.  All  the  other  defendants  sent  in  bids  of  "  protec- 
tion "  at  a  higher  figure.  Petitioner  further  charges  that 
when  the  bids  were  received  by  the  city  of  St.  Louis,  they  were 
opened  and  compared,  in  good  faith,  by  a  committee  that  rep- 
resented the  people  of  the  city  of  St.  Louis,  and  who  were 
anxious  to  procure  the  pipe  for  this  large  contract  at  as  low 
price  as  possible;  and  petitioner  charges  that  said  city  of  St. 
Louis  was  utterly  ignorant  as  to  the  conspiracy  between  de- 
fendants and  is  ignorant  of  the  fraudulent  and  corrupt  means 
adopted  by  them,  whereby  all  competition  in  bidding  for  the 
job  had  been  destroyed,  and  ignorant  of  the  complete  monop- 
oly  that  defendants  had  brought  about  in  the  territory  above 
named,  which  said  monopoly  petiticfner  charges  was  so  com- 
plete and  brought  about  by  the  means  aforesaid,  as  to  prevent 
other  persons  and  corporations  from  engaging  in  fair  com- 
petition with  them  in  the  sale  of  said  cast  iron  pipe,  and  insured 
to  defendants  almost  the  exclusive  right  of  dealing  in  the 
same,  and  appropriating  to  themselves  said  exclusive  privilege, 
and  restricting  and  restraining  others  in  the  exercise  of  the 
right  that  was  open  to  them  before  this  criminal  conspiracy 
and  unlawful  and  unauthorized  trust  was  entered  into  be- 
tween defendants.  So  that  the  contract  was  awarded  to  de- 
fendant Howard-Harrison  Iron  Company  at  the  price  of  $24 
per  ton  delivered  in  the  city  of  St.  Louis.  Petitioner  charges 
that  a  fair  and  reasonable  price  for  this  pipe  was  only  $16  to 
$18  per  ton  at  that  time,  and  in  fact  defendants  were  selling  the 
same  at  this  price  in  "  free  territory,"  where  they  had  com- 
petition, and  where  that  conspiracy  did  not  exist,  on  the  iden- 
tical date  at  which  the  sale  was  made  to  the  city  of  St.  Louis. 
Petitioner  shows  to  the  court  and  charges  that  the  extor- 


BILLS    IN    SPECIAL    CASES.  657 

tion  in  this  single  contract,  and  the  profit  realized  to  defend- 
ants in  the  shape  of  "  bonus,"  which  was  divided  between 
them,  amounted  to  between  $30,000  and  $40,000,  and  this  is 
only  one  contract  among  the  hundred  which  petitioner  charges 
were  secured  in  the  same  way.  Petitioner  charges  that  the 
pipe  for  this  contract  was  shipped  from  Bessemer  in  the  state 
of  Alabama  to  St.  Louis  in  the  state  of  Missouri,  and  de- 
fendants are  now  severally  engaged  in  shipping  pipe  to  other 
states  than  the  states  in  which  they  reside  under  and  in  pur- 
suance of  the  conspiracy  aforesaid. 

Thirteenth.  Petitioner  charges  upon  information  that  it  be- 
lieves to  be  true,  that  the  defendants,  Howard-Harrison  Iron 
Company,  Anniston  Pipe  &  Foundry  Company,  South  Pitts- 
burg Pipe  Works,  and  Chattanooga  Foundry  &  Pipe  Works, 
some  time  prior  to  December  28,  1894,  had  entered  into  a 
contract  or  combination  in  the  form  of  a  trust  or  conspiracy  in 
restraint  of  trade  and  commerce  between  the  several  states, 
which  was  similar  in  terms  to  the  conspiracy  entered  into  on 
said  28th  day  of  December,  1894,  and  the  four  defendants 
last  named  had  been  operating  under  the  same  prior  to  that 
date,  but  in  order  to  make  their  monopoly  complete  the  two 
other  defendants  were  admitted  to  the  trust  on  said  28th  day 
of  December,  1894,  and  the  purpose  of  admitting  them  was  to 
destroy  all  competition  between  them  and  insure  a  complete 
monopoly  in  the  sale  of  pipe,  and  all  of  deifendants  herein  are 
now  operating  under  said  trust. 

Fourteenth.  Petitioner  charges  that  the  contract,  combina- 
tion, trust  or  conspiracy  aforesaid,  under  which  defendants 
are  now  operating  is  in  restraint  of  trade  and  commerce  be- 
tween and  among  the  several  states  and  has  resulted  in  a 
monopoly  to  them  in  the  manufacture  and  sale  of  cast  iron 
pipe  in  the  territory  named ;  is  an  unlawful  combination,  trust 
and  conspiracy,  and  in  open  violation  of  the  Act  of  Congress 
of  July  2,  1890,  and  petitioner  brings  this  suit  to  restrain 
the  violation  hereinbefore  set  forth  and  prevent  defendants 


OSS  SUITS    IN    EQUITY. 

from  continuing  the  sale  and  transportation  of  said  cast  iron 
pipe  from  the  states  in  which  they  reside  into  other  states  and 
for  the  purposes  of  having  any  of  said  cast  iron  pipe,  belong- 
ing to  either  of  said  defendants  and  being  in  course  of  trans- 
portation by  Ihem  or  either  of  them  from  one  state  to  another, 
forfeited  to  petitioner  and  seized  and  confiscated  as  provided 
by  law. 

Fifteenth.  Petitioner  further  charges  that  inasmuch  as  the 
conspiracy  aforesaid  was  entered  into  in  this  division  and  dis- 
trict of  your  honor's  court  and  defendants  are  all  parties  to 
the  same,  that  the  ends  of  justice  require  that  they  each  be 
brought  before  the  court  in  answer  to  this  petition. 

Wherefore  your  petitioner  prays: 

First.  That  it  be  allowed  to  file  this  petition,  and  upon  the 
filing  of  the  same,  that  under  the  fiat  of  your  honor  an  in- 
junction or  restraining  order  be  granted  enjoining  and  re- 
straining defendants  or  either  of  them  from  selling  and  trans- 
porting cast  iron  pipe  into  other  than  the  states  in,  which 
they  reside  under  any  contract  or  agreement,  entered  into 
with  citizens  of  such  other  states,  by  virtue  of  the  combination, 
trust  or  conspiracy  now  existing  between  the  defendants. 

Second.  That  each  of  the  defendants  be  made  parties  hereto, 
by  subpcena  directed  to  the  marshal  of  the  district  where  they 
reside,  accompanied  with  a  copy  of  such  injunction  or  re- 
straining order  as  your  honor  may  grant. 

Third.  That  defendants  be  required  to  answer  this  petition 
fully  but  not  on  oath,  as  their  answers  under  oath  are  waived. 

Fourth.  That  all  cast  iron  pipe  sold  and  transported  by  de- 
fendants after  this  date,  under  and  in  pursuance  of  the  com- 
bination, trust  and  conspiracy,  charged  in  this  petition,  to  any 
other  state  than  the  state  in  which  the  defendant  so  selling  and 
transporting  said  cast  iron  pipe  resides,  be  forfeited  to  your 
petitioner,  and  seized  and  confiscated  in  the  manner  provided 
by  law. 

Fifth.  And  upon  the  hearing  let  a  decree  pass  dissolvmg 


BILLS    IN    SPECIAL    CASES.  659 

the  trust,  combination  and  unlawful  conspiracy  now  existing" 
between  defendants  and  perpetually  enjoining-  them  from 
operating  under  the  same  and  from  selling  and  transporting 
said  cast-iron  pipe  into  other  states  than  in  which  they  reside. 
Petitioner  prays  for  general  relief,  and  states  that  this  is 
the  first  application  for  extraordinary  process  in  this  cause. 

J.  H., 
U.  S.  Attorney  for  the District  of . 

State  of . 


County. 

J.  H.  makes  oath  that  the  facts  stated  in  the  foreg-oing 
petition  as  of  his  own  knowledge  are  true,  and  those  stated 
on  information  he  believes  to  be  true,  and  that  he  brings  this 
petition  under  the  direction  of  the  Hon.  Judson  Harmon, 
attorney  general  of  the  United  States.  J.  H. 

Sworn  to  and  subscribed  before  me  this  day  of , 

A.  D. .  F.  X., 

[Seal.]  Notary  Public. 

(1)  Taken  from  the  record  in  Addyston  Pipe  &  Steel  Co.  v.  U.  S. 
1?5,  U.  S.  211. 

Cases  decided  under  the  Sherman  Anti-Trust  Law,  or  relating  thereto 
(Act  of  July  2,  1890,  26  Stat,  at  L.  209),  are  collected  in  four  volumes, 
covering  the  period  1890  to  1912,  compiled  by  the  United  States  De- 
partment of  Justice,  under  the  title,  "Federal  Anti-Trust  Decisions." 

The  Sherman  Anti-Trust  Act  was  thoroughly  considered  and  its  pur- 
poses restated  and  the  rules  of  construction  clarified  and  affirmed  in 
Standard  Oil  Co.  v.  U.  S.,  221  U.  S.  1',  and  U.  S.  v.  American  Tobacco 
Co.,  221  U.  S.  106,  in  which  the  court  took  the  view  that  the  Act  should 
be  construed  in  the  light  of  reason,  and  hence  the  Act  "prohibits  all  con- 
tracts and  combinations  which  amount  to  an  unreasonable  or  undue 
restraint  of  trade  in  interstate  commerce,"  and  necessarily  limiting  and 
qualifying  the  earlier  great  decisions. 

A  further  consideration  of  this  Act  is  found  in  U.  S.  v.  United  Shoe 
Machinery  Co.,  247  U.  S.  32  (1918). 

In  38  Stat.  L.  730,  Act  of  October  IS,  1914,  is  found  the  so-called 
Clayton  Act,  entitled  "An  Act  to  supplement  existing  laws  against  unlawful 
restraints  and  monopolies,  and  for  other  purposes ;"  this  relates  to  price 
discrimination,  one   corporation   acquiring   stock  in  another   corporation. 


660  SUITS    IN    EQUITY. 

interlodking  directorates,  and  some  other  matters,  besides  prescribing  regu- 
lations and  limitations  upon  injunctions. 

Suit  for  violation  may  be  brought  by  the  person  injured  in  any  district 
court  of  the  United  States  in  any  district  where  the  defendant  resides  or 
has  an  agent  or  is  found,  and  there  is  no  jurisdictional  amount,  and  making 
a  corporation  suable  wherever  it  does  business.  Frey  v.  Cudahy  Packing 
Co,  228  Fed.  209. 

The  Act  provides  that  compliance  therewith  may  be  enforced  in  the 
Interstate  Commerce  Commission,  where  common  carriers  are  involved; 
in  the  Federal  Reserve  Board,  where  banks  are  involved,  and  in  the 
Federal  Trade  Commission  where  any  other  character  of  commerce  is 
involved. 

Under  this  Act  all  that  is  necessary  to  state  a  case  is  "to  charge  that 
the  defendants  committed  the  named  acts  prohibited  by  the  statute  and 
that  the  acts  tend  substantially  to  lessen  competition  or  create  a  monopoly 
in  interstate  commerce."  U.  S.  v.  United  Shoe  Machinery  Co.,  234  Fed. 
127,  and  see  page  150,  for  statement  of  sufficiency  of  allegations;  and 
further,  on  page  ISO,  the  court  says  that  Congress  intended  that  the 
construction  of  the  Sherman  Act  should  not  control  the  Clayton  Act,  inas- 
much as  the  latter  Act  enumerates  specific  acts  of  conduct  which  are 
prohibited  while  in  the  Sherman  Act  the  conduct  prohibited  is  stated  in 
general  terms. 

The  reasoning  on  this  point  was  satisfactory  to  the  court  in  Standard 
Fashion  Co.  v.  Magrane  Houston  Co.,  254  Fed.  493,  at  pp.  498  and  499; 
but  the  circuit  court  of  appeals,  in  affirming  the  judgment  of  this  case  below 
expressly  declined  to  express  an  opinion  upon  the  application  of  the 
Clayton  Act  therein.  Standard  Fashion  Co.  v.  Magrane  Houston  Co.,  251 
Fed.  559. 


No.  465. 

To   Permit   One   Competitor   to   Sell   Out   to   Another,   Both 

Having  Previously  Been  Found  Guilty  of  Violating 

the  Sherman  Law, 

[Caption.] 

The  plaintiffs,  American  Press  Association,  a  corporation 
organized  under  the  laws  of  the  state  of  New  York;  Ameri- 
can Press  Association,  a  corporation  organized  under  the 
laws  of  the  state  of  West  Virginia;  Courtland  Smith,  Wil- 
liam G.  Brogan  and  Maurice  F,  Germond,  by  Edgar  A.  Ban- 
croft and  Charles  A.  Brodek,  their  solicitors,  for  their  bill  of 
complaint  against  the  defendants,  Western  Newspaper  Union 
of  Maine,  Western  Newspaper  Union  of  New  York,  John  F! 


BILLS    IN    SPECIAL   CASES.  661 

Cramer,  H.  H.  Fish,  M.  H.  :\IcMillen  and  The  United  States 
of  America,  allege  and  show : 

1.  That  American  Press  Association  is  a  corporation  or- 
ganized under  the  laws  of  the  state  of  New  York,  with  its 
principal  office  in  New  York  City,  and  a  citizen  and  resident 
of  the  state  of  New  York.  That  the  other  plaintiff,  American 
Press  Association,  is  a  corporation  organized  under  the  laws 
of  the  state  of  West  Virginia,  with  its  principal  office  in  that 
state  at  Charleston,  and  a  citizen  and  resident  of  said  state, 
and  that  said  company  has  the  same  officers  as  plaintiff. 
American  Press  Association,  organized  under  the  laws  of  the 
state  of  New  York.  The  plant  and  other  properties  herein- 
after referred  to  as  belonging  to  American  Press  Association 
are  the  properties  of  the  former  corporation  bearing  that 
name,  but  the  same  are  leased  to  and  the  business  is  con- 
ducted by  the  latter  corporation,  and  when  the  American 
Press  Association  is  herein  mentioned  or  referred  to  refer- 
ence is  had  to  both  of  said  corporations  or  the  one  to  which 
the  allegation  is  appropriate.  That  the  plaintiffs,  Courtland 
Smith,  William  G.  Brogan  and  Maurice  F.  Germond,  are 
residents  and  citizens  of  the  state  of  New  York. 

2.  That  the  Western  Newspaper  Union  of  Maine  is  a  cor- 
poration organized  under  the  laws  of  the  state  of  Maine,  with 
its  principal  office  in  that  state  at  Augusta,  and  is  a  citizen 
and  resident  of  said  state.  Upon  information  and  belief  that 
the  defendant,  John  F.  Cramer,  is  a  resident  and  citizen  of 
the  state  of  Wisconsin ;  that  the  defendant.  H.  H.  Fish,  is  a 
resident  and  citizen  of  the  state  of  Nebraska,  and  that  the 
defendant,  M.  H.  McMillen,  is  a  resident  and  citizen  of  the 
state  of  Illinois. 

2a.  That  the  amount  involved  in  this  controversy  in  this 
suit,  exclusive  of  costs  and  interests,  exceeds  the  sum  of  five 
thousand  dollars  ($5,000). 

3.  That  on  the  3rd  day  of  August,  1912,  the  United  States 
of  America,  by  James  H.  Wilkerson,  its  attorney  for  the 
northern  district  of  Illinois,  acting  under  the  direction  of  its 
attorney  general,  filed  in  the  United  States  district  court  for 


662  SUITS    IN    EQUITY, 

the  northern  district  of  Illinois,  a  petition  in  equity  under  the 
act  of  July  2,  1890,  known  as  the  Sherman  law,  against  the 
plaintiffs,  the  defendants,  Western  Newspaper  Union,  a  cor- 
poration of  Illinois,  which  has  since  been  dissolved;  Western 
Newspaper  Union  of  New  York,  which  has  since  transferred 
all  of  its  assets  to  said  Western  Newspaper  Union  of  Maine, 
and  is  no  longer  engaged  in  business ;  John  F.  Cramer,  H.  H. 
Fish  and  M.  H.  McMillen,  and  against  Central-West  Publish- 
ing Company,  whose  name  has  since  been  changed  to  West- 
ern Newspaper  Union,  a  corporation  of  Maine,  and  w^hich  is 
made  a  party  defendant  hereto  under  said  last-mentioned  name, 
and  one  George  A.  Joslyn,  who  has  died  since  the  filing  of 
said  petition ;  that  a  copy  of  said  petition  in  equity  is  hereto 
annexed  as  part  hereof,  and  marked  "Exhibit  A."  That  on 
the  day  said  petition  in  equity  was  filed  answers  were  filed  by 
the  several  defendants  in  said  cause,  and  that  immediately 
thereafter  said  cause  came  on  for  hearing  before  the  Hon. 
K.  M.  Landis,  district  judge  of  the  said  court,  and  the  United 
States,  petitioners,  appeared  by  its  district  attorney,  James  H. 
Wilkerson,  and  by  William  T.  Chantland,  special  assistant  to 
the  attorney  general,  and  moved  the  court  for  an  injunction 
in  accordance  with  the  prayer  of  its  petition.  That  by  agree- 
ment between  the  government  and  the  counsel  representing 
the  several  defendants,  a  decree  was  rendered  and  entered  in 
said  cause  on  the  3rd  day  of  August,  1912.  That  a  copy  of 
the  said  decree  is  hereto  annexed  as  part  hereof,  and  marked 
"Exhibit  B."  That  since  the  filing  of  said  petition  said 
Western  Newspaper  Union  of  New  York  has  transferred  its 
assets  to  said  Western  Newspaper  Union  of  Maine  and  is  no 
longer  engaged  in  business. 

4.  That  at  the  time  of  the  rendition  of  the  aforesaid  decree 
of  August  3,  1912,  the  American  Press  Association  and  the 
Western  Newspaper  Union  were  engaged  in  the  business  of 
furnishing  matter  in  plate  form  and  in  ready-print  form  to  a 
large  number  of  the  smaller  or  so-called  "country  newspapers" 
of  the  United  States.  That  such  services  were  known  in  the 
newspaper  world  respectively  as    (1)    plate  service  and    (2) 


BILLS    IN    SPECIAL    CASES.  663 

ready-print  service.  That  plate  service  consists  in  furnishing- 
matter  in  the  form  of  metal  type  plates  cast  in  newspaper 
column  lengths  and  shipped  from  the  various  distributing- 
points  of  the  plate  concern  to  the  issuing  offices  of  the  news- 
papers using  it.  That  ready-print  is  the  furnishing  of  news- 
papers partly  printed  and  for  home  or  local  printing  partly 
blank.  That  the  ready-print  service  must  be  put  out  in  full 
pages  upon  the  back  of  which,  and  upon  additional  pages  the 
newspapers  print  additional  matter,  while  plate  service  is  put 
out  in  columns  which  may  be  used  as  sent  out  or  may  be 
sawed  up  and  rearranged  in  the  newspaper  offices.  That  the 
ready-prints  furnished  by  the  Western  Newspaper  Union  con- 
tain advertisements,  but  the  ready-prints  furnished  by  the 
American  Press  Association  contain  no  advertisements  and 
were  consequently  known  as  adless  ready-prints. 

5.  That  the  industry  of  furnishing  matter  to  the  countr}'- 
press  in  plate  form  and  in  ready-print  form  was  organized 
and  developed  because  the  very  limited  circulation  of  each 
separate  country  newspaper  makes  it  impossible  for  any  one 
of  them  to  go  to  the  large  expense  of  gathering  the  matter 
for  its  particular  use,  whereas  one  concern  gathering  the 
matter  can  distribute  it  to  a  number  of  newspapers  at  a  price 
which  the  individual  country  newspaper  can  afford  to  pay. 

6.  That  at  the  time  of  the  rendition  of  the  said  decree  of 
August  3,  1912.  the  Western  Newspaper  Union  supplied  more 
than  eighty  per  cent,  of  the  ready-print  service  in  the  United 
States,  and  the  American  Press  Association  supplied  a  small 
fraction  with  adless  ready-prints ;  but  at  that  time  the  plate 
business  of  the  American  Press  Association  was  substantially 
greater  than  that  of  the  Western  Newspaper  Union.  That 
shortly  after  the  entry  of  said  decree,  and  in  or  about  Octo- 
ber. 1912,  the  American  Press  Association  ceased  its  efforts 
to  expand  its  ready-print  service  because  it  reached  the  con- 
clusion that  an  adless  ready-print  service  was  unprofitable,  but 
it  continued  to  serve  a  constantly  diminishing  number  of  cus- 
tomers with  adless  ready-prints  until  at  the  present  time  there 
are   only   about   fifty   papers   receiving   its   service,    and   that 


664  SUITS    IN    EQUITY. 

service  now  is  negligible,  being  not  more  than  one  per  cent, 
of  the  total  ready-print  business  in  the  United  States. 

7.  That  following  the  rendition  of  the  said  decree,  and  up 
to  1914,  the  most  important  business  of  the  American  Press 
Association  was  its  plate  department.  That  in  1910  the 
American  Press  Association  started  an  advertising  depart- 
ment to  represent  country  newspapers  in  placing  and  advising 
with  respect  to  foreign  (i.  c,  non-local)  advertising  with 
them.  That  it  was  not  until  1914  that  any  substantial  prog- 
ress was  made  with  publishers,  advertisers  or  advertising 
agents,  but  since  that  time  progress  has  been  steady.  That  in 
1912  the  advertising  department  of  the  American  Press  As- 
sociation represented  about  two  thousand  newspapers,  but  the 
volume  of  foreign  advertising  business  placed  with  such  pa- 
pers was  nominal.  That  at  the  present  time  the  advertising 
department  of  the  American  Press  Association  represents 
5,230  papers  and  the  foreign  advertising  business  placed  with 
them  by  it  is  the  most  important  part  of  their  foreign  adver- 
tising revenue.  That  as  yet  the  country  newspapers  have  no 
other  agency  or  influence  working  for  them  to  develop  for- 
eign advertising,  which  is  the  country  publishers'  one  un- 
limited field  for  profitable  income.  That  the  only  other 
sources  of  income  open  to  country  publishers  are  income  from 
circulation,  which  is  always  a  loss,  and  income  from  local 
advertising  and  from  job-work,  both  of  which  are  limited  by 
the  size  and  business  of  each  publisher's  town  and  immediate 
vicinity. 

8.  That  since  the  rendition  of  the  said  decree  conditions 
that  obtained  among  the  country  newspapers  of  the  United 
States  have  undergone  a  marked  change,  in  that  foreign  (/.  e., 
non-local)  advertising  in  1912  was  of  little,  if  any,  importance 
in  the  revenue  producing  sense  to  publishers  of  country  news- 
papers, whereas  to-day  it  is  the  subject  that  engrosses  their 
attention  to  the  exclusion  of  every  other  question,  except,  for 
the  time  being,  the  scarcity  of  print  paper,  for  the  reason 
that  it  is  the  only  growing  and  unlimited  field  of  revenue 
open  to  the  country  publishers,  so  that  if  five  years  ago  the 


BILLS    IN    SPECIAL    CASES.  665 

American  Press  Association  had  gone  out  of  the  plate  busi- 
ness it  could  not,  in  all  probability,  have  continued  its  adver- 
tising department,  for  the  reason  that  the  publishers  of  coun- 
try newspapers  did  not  know  or  appreciate  the  American 
Press  Association  as  their  advertising  representative.  That 
at  the  present  time,  notwithstanding  the  fact  that  it  has  dealt 
with  the  publishers  of  country  newspapers  for  thirty-five 
years  in  the  plate  business,  the  American  Press  Association  is 
better  known  and  more  thoroughly  appreciated  by  the  pub- 
lishers of  country  newspapers  as  their  advertismg  representa- 
tive than  ks  a  manufacturer  of  plates.  That  the  American 
Press  Association  did  not  have,  and  has  not  now,  the  capital 
necessary  to  a  rapid  development  and  expansion  of  its  adver- 
tising department,  inasmuch  as  practically  all  of  its  available 
capital  has  been  and  is  invested  in  its  original  and  now  non- 
profitable  business,  to-wit :  its  plate  service. 

9.  That  the  practical  disappearance  of  the  ready-print  de- 
partment of  the  American  Press  Association  had  the  efifect 
of  concentrating  all  the  important  items  of  overhead  on  the 
plate  department,  so  that  plate  service  became  a  sole  and  di- 
rect product  of  the  American  Press  Association.  That,  as 
stated  in  the  case  of  the  Western  Newspaper  Union,  its  ready- 
print  service  is,  and  for  many  years  has  been,  its  more  im- 
portant and  profitable  service,  and  inasmuch  as  the  mainte- 
nance and  development  of  both  ready-print  and  plate  services 
require  practically  the  same  organization,  the  overhead  of  the 
Western  Newspaper  Union  is  distributed  over  both  plate  and 
ready-print  services,  and  the  plate  service  is  treated  by  it  as 
the  by-product  of  the  more  important  and  profitable  ready- 
print  service. 

10.  That  since  the  rendition  of  the  said  decree  the  cost  of 
labor  and  of  materials,  and  of  many  items  of  overhead  of 
plate  service,  has  greatly  increased,  but  the  American  Press 
Association  has  not  increased  the  price  of  its  plate  service  to 
the  newspapers  because  the  Western  Newspaper  Union  ad- 
heres to  the  old  price,  so  that  any  increase  in  price  by  the 
American   Press  Association  would  have  resulted   inevitably 


666  SUITS    IN    EQUITY. 

in  a  serious,  if  not  complete,  loss  of  business.  That  the  net 
result  to  the  American  Press  Association  of  the  enforced  con- 
tinuance of  the  old  prices  has  been  that  the  plate  service  of 
the  American  Press  Association,  notwithstanding  the  most 
rigid  economy  and  the  efforts  to  increase  business,  has  estab- 
lished an  impossibility  to  increase  the  volume  of  sales,  and  has 
resulted  in  a  loss  from  the  time  of  the  entry  of  the  said  decree 
until  the  present  time,  a  period  of  almost  five  years. 

11.  That  the  distribution  of  plate  matter  by  the  Western 
Newspaper  Union  as  a  by-product  enabled  that  company  not 
only  to  refrain  from  raising  its  prices,  but  in  January,  1917, 
apparently  enabled  it  to  reduce  the  price  of  miscellaneous 
plate  matter  of  various  kinds  from  $1  to  75  cents  a  page,  and 
of  serials  from  $1.50  to  $1  a  page;  that  immediately  after 
knowledge  of  such  reduction  came  into  possession  of  the 
American  Press  Association,  it  appeared  with  its  counsel  be- 
fore the  department  of  justice  to  protest  against  such  reduc- 
tion as  a  violation  of  the  provisions  of  said  decree  of  August 
3,  1912,  and  more  particularly  the  provisions  of  III(c)  there- 
of, whereby  the  Western  Newspaper  Union  and  its  affiliated 
defendants  were  enjoined  "from  selling  any  of  their  product 
or  services  at  less  than  a  fair  and  reasonable  profit,  or  at  cost 
or  less  than  cost,  with  the  purpose  or  intent  of  injuring  or 
destroying  the  interstate  trade  and  commerce  of  the  Ameri- 
can Press  Association,  or  any  other  competitor,"  and  the 
American  Press  Association  asked  that  proceedings  be  taken 
forthwith  to  punish  the  Western  Newspaper  Union  and  its 
affiliated  defendants  for  a  violation  of  said  decree  and  to 
restrain  the  continuance  of  such  violation.  That  an  investi- 
gation by  the  department  of  justice  resulted  in  a  finding  by 
it  of  the  fact  that  the  reduced  prices  of  the  Western  News- 
paper Union,  as  aforesaid,  were  not  in  violation  of  the  decree 
of  August  3,  1912,  and  more  particularly  paragraph  III(c) 
thereof,  hereinbefore  quoted. 

12.  That  the  scarcity  and  consequent  high  price  of  print 
paper  has  had  a  serious  effect  in  diminishing  the  aggregate 
demand  for  plate  service,  in  that  very  few,  if  any,  newspapers 


BILLS    IN    SPF.CIAL    CASES.  (JS7 

are  being  started,  more  are  discontinuing',  and  those  that  re- 
main in  business  are  using  every  effort  to  minimize  the  quan- 
tity of  print  paper  used.  That  this  substantial  diminution  of 
the  field  for  plate  service,  combined  with  the  aforesaid  reduc- 
tion in  the  price  of  plates,  has  resulted  in  a  serious  shrinkage 
in  the  volume  of  plate  sales  by  the  American  Press  Association, 
and  in  transforming  its  non-profitable  plate  business  into  a 
business  inolving  serious  financial  losses.  That  the  total  plate 
sales  of  the  American  Press  Association  in  the  year  1916 
amounted  to  $731,000,  while  its  sales  from  January  1,  1917, 
to  April  1,  1917,  were  at  the  rate  of  $600,000  for  the  year — 
a  loss  in  sales  of  $131,000,  without  taking  into  consideration 
the  naturally  progressive  rate  of  loss.  That  the  sale  of  plate 
matter  by  the  American  Press  Association  during  the  first 
three  months  of  1917  involved  a  loss  of  approximately 
$9,500,  or  at  the  rate  of  about  $40,000  a  year,  without  mak- 
ing any  allowance  for  depreciation  or  for  loss  of  metal. 

13.  That  with  the  print-paper  market  in  normal  condition 
the  plate  business  of  the  United  States  is  necessarily  limited, 
inasmuch  as  no  additional  newspapers  can  be  caused  to  be 
started  merely  to  obtain  plate  service,  nor  can  any  effort  ex- 
pand to  any  material  extent  the  amount  of  space  which  the 
editors  devote  to  plate  matter,  while  at  the  present  time  the 
field  is  shrinking  through  the  efforts  of  the  publishers  to 
economize  in  the  use  of  print  paper.  That  even  if  capital 
were  available  and  the  print-paper  market  normal,  it  would 
be  futile  for  the  American  Press  Association  to  attempt  to 
obtain  a  larger  percentage  of  the  plate  business  against  the 
competition  of  a  by-product  of  the  Western  Newspaper 
Union.  That  the  only  commercially  sound  manner  of  putting 
the  plate  business  of  the  American  Press  Association  on  an 
economically  equal  basis  with  the  plate  business  of  the  West- 
ern Newspaper  Union,  would  be  to  transform  it  likewise  into 
a  by-product  by  engaging  on  a  vast  scale,  as  does  the  Western 
Newspaper  Union,  in  the  ready-print  business.  That  such  a 
plan  is  utterly  impossible,  not  merely  because  no  capital  is 
available  or  procurable  for  the  purpose,  but  because  the  situ- 


668  ■  SUITS    IN    EQUITY. 

ation  in  the  print-paper  industry  is  such  that  the  paper  for  a 
ready-print  service  is  not  obtainable. 

14.  That  the  officers  and  controlling  stockholders  of  the 
American  Press  Association  concluded,  therefore,  that  noth- 
ing remained  but  to  wind  up  the  business  of  the  American 
Press  Association,  sell  its  assets  for  the  benefit  of  its  credit- 
ors, and  divide  the  excess,  if  any,  among  its  stockholders. 
That  the  discontinuance  of  its  plate  business  necessarily  in- 
volves the  liquidation  of  the  entire  affairs  of  the  American 
Press  Association,  for  the  reason  that  on  such  a  sale  the  plant, 
metal  and  other  tangible  assets  would  have  to  be  sacrificed. 
That  the  machinery  is  special  and  worth  little  as  second-hand 
machinery.  That  part  of  the  metal  outstanding  would  not 
be  returned  by  publishers,  and  the  part  returned  would  come 
in  slowly  and  be  an  expense  to  the  American  Press  Asso- 
ciation to  collect.  That  the  large  quantity  of  metal  outstand- 
ing in  the  form  of  metal  bases,  though  absolutely  necessary 
in  the  plate  business,  could  only  be  sold  as  metal  junk.  That 
in  addition  the  accounts  receivable,  consisting  of  small 
amounts  due  from  numerous  country  publishers,  would  take  a 
year  or  more  to  collect  in  so  far  as  they  proved  collectible. 
That  such  a  disposition  of  the  tangible  assets  would  not  real- 
ize enough  money  to  enable  or  justify  continuing  the  adver- 
tising department,  so  that  the  officers  and  controlling  stock- 
holders of  the  American  Press  Association  have  concluded, 
after  careful  consideration,  that  to  attempt  to  continue  the 
advertising  department  on  a  scale  that  would  render  the 
necessary  service  to  the  country  newspapers  of  the  United 
States,  would  require  a  sum  materially  in  excess  of  what 
could  be  obtained  on  a  sale  in  liquidation  of  the  assets  of  the 
American  Press  Association.  That  such  needed  additional 
capital  could  not  be  procured  by  way  of  investment,  nor  could 
the  company  borrow  the  necessary  funds  because  it  would 
have  divested  itself  of  its  tangible  assets  to  realize  thereon  to 
best  advantage  and  would  consequently  be  without  borrowing 
capacity.  That  therefore  the  stockholders  of  the  American 
Press  Association,  having  had  no  return  on  their  investment 


BILLS    IN    SPECIAL    CASES.  669 

since  1912,  would  prefer  to  take  a  small  dividend  and  wind 
np  the  business  than  to  hazard  the  last  dollar  of  their  invest- 
ment in  the  continuance  of  the  advertising  department  under 
unfavorable  conditions. 

15.  That  the  conditions  hereinbefore  set  forth,  which  com- 
pel the  retirement  of  the  American  Press  Association  from 
the  plate  business,  and  in  consequence  from  all  business,  are 
not  attributed  or  attributable  to  any  unlawful  acts  by  the 
Western  Newspaper  Union,  but,  as  hereinbefore  set  forth, 
solely  to  economic  conditions  which  are  outside  the  statute 
law.  That  in  discontinuing  its  place  service  the  American 
Press  Association,  unless  it  can  sell  that  business  complete, 
must  sacrifice  its  assets  with  very  great  loss  to  its  stockhold- 
ers and  with  no  gain  whatever  to  the  public,  but  a  distinct 
loss  in  the  interruption  of  a  plate  service  to  country  news- 
papers throughout  the  United  States. 

16.  That  the  purpose  of  this  suit  is  to  place  the  American 
Press  Association  in  a  position  to  avail  itself  of  an  alter- 
native which  will  avoid  the  sacrifice  of  its  assets  and  will 
permit  it  to  continue  in  business  as  the  advertising  represen- 
tative of  country  newspapers.  That  such  alternative  is  based 
upon  a  suggestion  by  the  plaintiff,  Courtland  Smith,  president 
and  general  manager  of  the  American  Press  Association,  that 
in  view  of  the  desperate  condition  of  the  plate  business  of  the 
American  Press  Association,  the  assets  and  business  of  its 
plate  service  be  transferred  to  the  Western  Newspaper  Union, 
provided  legal  permission  be  obtained.  That  the  Western 
Newspaper  Union  subsequently  signified  its  willingness,  like- 
wise subject  to  legal  permission,  to  take  over  the  assets  and 
business  of  the  plate  service  of  the  American  Press  Associa- 
tion on  the  basis  of  annual  payments  covering  a  period  of 
twenty  years;  that  the  plaintiff,  Courtland  Smith,  on  behalf 
of  the  American  Press  Association,  frankly  disclosed  to  the 
Western  Newspaper  Union  the  condition  of  the  American 
Press  Association,  and  the  other  facts  set  forth  in  this  bill  of 
complaint,  and  that  the  aforesaid  conditional   expression   of 


670  SUITS    IN    EQUITY. 

willingness  to  purchase  on   the  part  of  the  Western  News- 
paper Union  was  made  by  it  with  such  knowledge. 

17.  That  in  the  opinion  of  the  plaintiffs  it  would  be  advan- 
tageous to  the  Western  Newspaper  Union  to  acquire  the 
plate  department  of  the  American  Press  Association  as  a  go- 
ing concern,  if  the  transfer  shall  be  permitted,  for  these  rea- 
sons :  that  while  the  tangible  assets  of  the  American  Press 
Association  are  in  such  shape  that  they  have  comparatively 
little  value  when  disposed  of  as  second-hand  material,  they 
have  real  value  to  a  going  concern ;  that  upon  the  discon- 
tinuance of  the  plate  business  by  the  American  Press  Asso- 
ciation the  Western  Newspaper  Union  would  be  in  position  of 
having  this  business  forced  upon  it,  for  the  newspapers  must 
secure  plate  matter  and  practically  their  only  source  of  supply 
would  be  the  Western  Newspaper  Union ;  that  this  would  im- 
mediately create  a  demand  for  Western  Newspaper  Union 
plate  far  in  excess  of  its  ability  to  supply  with  its  present 
stock  of  metal;  that  to  buy  that  metal  at  the  present  prices, 
when  it  can  be  bought  at  all,  would  be  highly  unprofitable; 
that  the  plates  of  the  American  Press  Association  and  of  the 
Western  Newspaper  Union  are  used  with  a  metal  base,  the 
bases  being  retained  by  the  newspaper  publishers  for  continu- 
ous use;  that  the  plates  of  the  said  two  companies  require 
special  bases  so  that  Western  Newspaper  Union  plates  can 
not  be  used  on  American  Press  Association  bases,  and  con- 
sequently the  Western  Newspaper  Union  would  be  required 
at  once  to  furnish  a  large  number  of  metal  bases  to  papers 
not  now  using  their  plates;  that  by  reason  of  the  material 
difference  in  the  bases  used  by  the  said  two  companies  respec- 
tively, the  Western  Newspaper  Union  would  have  to  educate 
publishers  in  the  use  of  their  plates ;  that  this  would  be  a 
source  of  delay  and  extra  cost  to  the  Western  Newspaper 
Union  and  a  matter  of  inconvenience  and  necessarily  in- 
creased cost  to  the  customers,  and  a  source  of  annoyance  and 
irritation.  That  for  these  reasons  plaintiffs  are  of  the  opinion 
that  the  Western  Newspaper  Union  would  naturally  seek  to 
secure  the  metal  supply  of  the  American  Press  Association, 


BILLS    IN    SPECIAL    CASES.  671 

and  also  to  secure  the  plant  of  the  American  Press  Associa- 
tion, SO  that  for  the  time  being,  at  least,  it  could  pontinue  to 
manufacture  the  American  Press  Association  style  of  plate 
for  use  by  newspapers  having  American  Press  Association 
style  of  bases.  That  in  regard  to  the  accounts  receivable  the 
Western  Newspaper  Union  would,  in  the  opinion  of  the  plain- 
tiffs, consider  it  desirable  to  take  such  accounts  over  for  the 
reason  that  it  would  provide  a  friendly  and  easy  way  of  start- 
ing business  relations  with  a  number  of  new^spapers  that  have 
not  heretofore  dealt  with  it.  That  finally,  the  plaintiffs  be- 
lieve, that  if  the  American  Press  Association  went  out  of 
business  completely  publishers  would  feel  that  in  some  way 
the  American  Press  Association  had  been  unfairly  eliminated ; 
that  this  would  react  on  the  Western  Newspaper  Union  in 
such  a  way  that  there  are  many  papers  w'hose  good  will  could 
not  be  secured  for  many  years,  if  ever,  so  that  the  Western 
Newspaper  Union,  the  plaintiffs  believe,  is  apparently  willing 
to  assume  its  responsibility  in  such  a  way  as  that  publishers 
may  reasonably  conclude  that  the  situation  was  not  of  its 
making,  and  that  it  had  not  illegally  put  the  American  Press 
Association  out  of  business,  but  that  on  the  contrary  the 
Western  Newspaper  Union  had,  in  fact,  made  it  possible  for 
the  American  Press  Association  to  continue  in  the  one  depart- 
ment that  country  publishers  are  now  most  vitally  interested 
in.  viz :  the  advertising  department  and  special  services  of  the 
American  Press  Association. 

18.  That  the  tentative  plan  of  having  the  payments  cover 
a  period  of  twenty  years,  enables  the  American  Press  Asso- 
ciation to  continue  in  business  for  at  least  that  time,  and  per- 
mits the  concentration  of  its  capital  and  efforts  upon  the  ad- 
vertising department  and  service,  with  the  consequent  benefits 
to  the  country  newspapers  of  the  United  States  by  way  of 
foreign  advertising.  That  it  is  for  the  purpose  of  assuring 
the  continuance  of  this  service  for  the  country  newspapers 
that  plaintiffs  now  present  their  bill  of  complaint.  That  in 
addition  the  American   Press  Association  would  thereby  be 


672  SUITS    IN    EQUITY. 

enabled  to  continue  its  newspaper,  the  American  Press,  which 
circulates  among  the  editors  of  the  country  newspapers  of 
the  United  States,  and  is,  perhaps,  the  most  valuable  medium 
for  trade  information  and  advice  for  country  editors  and 
publishers. 

19.  That  the  discontinuance  of  the  plate  service  by  the 
American  Press  Association  means  that  such  must  be  sup- 
plied by  the  Western  Newspaper  Union,  and  that  the  West- 
ern Newspaper  Union  will  be  free  to  do  so.  That  a  concen- 
tration of  the  plate  business  in  the  hands  of  the  Western 
Newspaper  Union  is  inevitable  through  the  natural  process 
that  must  necessarily  follow  the  abandonment  of  the  field  by 
the  American  Press  Association.  That  the  plaintiffs  respect- 
fully submit  that  the  sale  of  the  assets  of  the  American  Press 
Association  as  second-hand  machinery  and  materials  would 
benefit  no  one  and  result  in  injury  to  the  .public,  through  its 
effect  upon  the  country  newspapers  of  the  United  States, 
"whereas  the  sale  of  the  assets  and  business  of  its  plate  service 
as  a  going  business  to  the  Western  Newspaper  Union,  the 
only  possible  customer,  would  avoid  a  great  loss  to  the  stock- 
holders of  the  American  Press  Association  from  scrapping  its 
assets  and  would  result  in  a  benefit  to  its  customers  and  the 
public  by  the  continuance  by  the  Western  Newspaper  Union, 
without  derangement  of  the  service  that  the  American  Press 
Association  had  theretofore  rendered.  That  this  would  not 
only  be  no  injury  to  the  public  for  the  withdrawal  of  the 
American  Press  Association  from  the  plate  business,  is  in- 
evitable, but  would  be  a  distinct  gain  to  all  who  have  had  or 
may  desire  the  plate  service. 

20.  That  equitable  relief  is  asked  for  and  is  necessary  be- 
cause by  the  provision  of  the  said  decree  of  August  3,  1912, 
the  Western  Newspaper  Union  and  its  affiliated  defendants 
are  restrained  permanently,  paragraph  III(c),  "from  combin- 
ing or  attempting  to  combine  with  said  defendant,  American 
Press  Association,  either  by  purchase,  stock  ownership  or  in 
any  other  manner." 


BILLS    IN    SPECIAL    CASES.  673 

21.  That  the  government  in  its  aforesaid  petition,  filed 
August  3,  1912,  charged  the  defendants  therein,  said  Western 
Newspaper  Union  and  American  Press  Association,  and  their 
respective  affiliated  companies  and  officers  therein  named 
that  were  then  competitors  in  the  newspaper  plate  business,^ 
with  committing  acts  in  unfair  competition  against  each  other 
in  violation  of  the  Sherman  anti-trust  law ;  that,  as  stated  in 
said  petition  of  the  government,  one  of  the  chief  objects  oi 
said  suit  and  of  the  injunctive  relief  therein  prayed  for  and 
granted,  was  to  prevent,  through  various  designated  methods 
of  unfair  competition,  the  probable  destruction  of  the  Ameri- 
can Press  Association  as  the  financially  weaker  competitor. 

22.  That,  as  hereinbefore  set  forth-,  the  conditions  then 
existing  in  said  plate  business  have  since  so  changed  that  in 
spite  of  the  relief  then  granted  by  this  honorable  court  the 
American  Press  Association  has  been  able  since  then  to  main- 
tain itself  as  a  competitor  only  by  carrying  on  its  business 
without  profit ;  and  that  by  reason  of  such  changed  conditions, 
which,  since  January  1,  1917,  have  caused  an  actual  and 
•heavy  loss  in  carrying  on  its  business,  the  American  Press 
Association  can  no  longer  sustain  such  burden  and  loss  and 
is  compelled  to  withdraw  from  said  plate  business. 

23.  That  said  decree  of  August  3,  1912,  which  was  intended 
to  protect  the  American  Press  Association  and  continue  it  in 
said  business,  will,  unless  relief  be  granted  as  herein  prayed, 
cause  the  destruction  of  its  organization  and  service,  the  sub- 
stantial loss  of  the  value  of  its  property,  and  the  entire  loss 
of  its  good  will,  built  up  during  thirty-five  years  last  past, 
with  resulting  injury  to  the  public  through  the  interruption 
of  such  plate  service  to  the  country  newspapers  which  the 
American  Press  Association  has  heretofore  served,  and  the 
loss  of  the  great  benefits  of  the  form  of  foreign  advertising 
service  developed  by  the  American  Press  Association  since 
the  rendition  of  said  decree  of  August  3,  1912,  as  herein- 
before set  forth. 

24.  That  the  said  decree  of  August  3,  1912,  has  served  its 
purposes,   and   the   application   of  the  provision   of  the   said 


674  SUITS    IN    EQUITY. 

decree  hereinabove  quoted  to  the  facts  now  existing  would 
be  inequitable  and  unconscionable.  That  is,  prohibition  of 
any  sale  of  assets  by  the  American  Press  Association  to  the 
Western  Newspaper  Union  serves  no  public  interest,  but 
would  compel  the  useless  sacrifice  of  the  assets  and  business 
of  the  plate  service  of  the  American  Press  Association,  witli 
no  gain  to  the  public  and  without  any  change  whatever  in  the 
result,  so  far  as  the  competition  of  the  American  Press  Asso- 
ciation is  concerned,  for  its  retirement  from  the  plate  service 
is  inevitable,  and  effective  competition  by  the  American  Press 
Association  with  the  Western  Newspaper  Union  in  the  plate 
service  is  already  practically  at  an  end. 

25.  Plaintiffs  further  show  that  in  the  past  eight  months 
conditions  have  rapidly  grown  worse,  and  the  situation  of 
the  American  Press  Association  is  so  critical  by  reason  of  the 
unusual  conditions  with  respect  to  the  prices  of  print  paper 
and  of  metal,  and  the  resulting  conditions  of  the  country 
newspapers  and  in  the  country  at  large,  that  there  is  no  pros- 
pect of  improvement  or  relief,  and  that  in  the  carefully  con- 
sidered judgment  of  the  officers  and  controlling  stockholders 
of  the  American  Press  Association  it  will  be  unable  to  carry 
on  and  develop  its  very  important  foreign  advertising  busi- 
ness, or  to  remain  in  business  at  all,  beyond  a  very  brief 
period,  unless  it  can  dispose  of  its  plate  business  as  a  going 
concern,  and  thus  obtain  funds  for  the  development  and  suc- 
cessful prosecution  of  its  remaining  business. 

For  as  much,  therefore,  as  plaintiffs  are  without  relief  in 
the  premises,  save  only  in  a  court  of  equity,  they  pray  this 
honorable  court  that  said  American  Press  Association  may  be 
saved  the  loss  of  the  value  of  its  assets  and  business  con- 
nected with  said  plate  service,  and  may  be  permitted  to  sell 
and  dispose  of  the  same  to  the  only  possible  purchaser  there- 
of, the  defendant,  Western  Newspaper  Union,  and  that  the 
parties  hereto  be  placed  in  the  same  position  with  respect  to 
the  sale  of  such  assets  and  business  as  if  said  decree  of  Au- 
gust 3,  1912,  had  not  been  entered,  and  that  appropriate  re- 


BILLS    IN    SPECIAL    CASES.  675 

lief  be  granted  against  the  provisions  of  said  decree  prohibit- 
ing the  American  Press  Association  from  selling  any  of  its 
assets  to  the  Western  Newspaper  Union  so  that  the  American 
Press  Association  shall  be  enabled  to  sell  its  assets  and  busi- 
ness pertaining  to  the  plate  service  as  a  going  concern  to  the 
Western  Newspaper  Union ;  and  that  complainants  may  have 
such  other  and  further  relief  as  this  honorable  court  may 
deem  meet  and  to  equity  shall  appertain. 

That  a  writ  of  subpoena  be  granted  to  plaintiflFs  in  accord- 
ance with  the  equity  rules  of  this  court  directed  to  the  marshal 
of  said  court,  commanding  him  that  he  summon  the  defend- 
ants. Western  Newspaper  Union,  a  corporation  of  the  state  of 
Maine;  John  F.  Cramer,  H.  H.  Fish,  M.  H.  McMillen,  and 
the  United  States  of  America,  to  appear  herein  upon  a  day 
certain  and  make  answer  hereto,  but  not  under  oath  (an- 
swers under  oath  being  hereby  waived),  and  further  to  per- 
form and  abide  by  such  order,  direction  and  decree  in  the 
premises  as  the  court  shall  seem  meet,  and  plaintiffs  will  ever 
pray,  etc. 

American  Press  Association,  a  corporation 
organized  under  the  laws  of  the  state  of 
New  York; 

American  Press  Association,  a  corporation 
organized  under  the  laws  of  the  state  of 
West  Virginia; 

COURTLAND   SmITH, 

William  G.  Brogan  and 
Maurice  F.  Germond. 

By  Edgar  A.  Bancroft, 
Charles  A.  Brodek,  Their  Solicitor. 

Edgar  A.  Bancroft, 

Solicitors  for  Plaintiffs. 


676  SUITS    IN    EQUITY. 

No.  466. 

To  Enjoin  the  Obstruction  of  a  River. (1) 

The  District  Court  of  the  United   States, 

District  of  . 

The  C.  &  D.  Railroad  Company,  Defendant.  ^ 

vs.  V  In  Equity. 

The  United  States  of  America,  Plaintiflfs,       ) 

To  the  Honorable  Judge  of  the  District  Court  for  the 

District  of ,  Division. 

The  United  States  of  America,  by  their  attorney,  J.  H., 
and  under  the  direction  of  the  attorney  general  of  the  United 
States,  the  plaintiflfs,  respectfully  show  unto  your  honor  that 
the  defendant,  the  C,  &  D.  Railroad  Company  is  a  corpora- 
tion duly  incorporated  under  the  laws  of  the  state  of  , 

and  is  a  citizen  and  inhabitant  of  the  district  of  , 

and  having  its  chief  office  of  business  in  the  city  of ,  in 

said  state,  where  it  is  carrying  on  the  business  of  a  railroad 
company,  transporting  freight  and  passengers,  is  unlawfully 
creating  an  obstruction,  not  affirmatively  authorized  by  law,  to 

the  navigable  capacity  of  the river,  a  public  highway  of 

commerce  and  intercourse  between  the  states,  and  a  river  in 
respect  to  which  the  United  States  have  jurisdiction. 

Plaintiffs  further  say  that  the  said  corporation,  defendant, 
is  in  possession  of,  occupies  and  uses  a  certain  lot  and  tract 
of  land  along  the  river  bank,  between  the  \_city  water  works'] 

and  the  lower  side  of street,  in  the  city  of ,  county 

of  ,  and  state  of  ,  and  which  said  lot  of  land  runs 

south  to  the  edge  and  low-water  mark  of  the river,  and 

which  said  lot,  with  the  buildings  thereon,  consisting  of 
tracks,  warehouses  and  other  superstructures,  is  and  are  used 
for  the  business  of  said  railroad  company,  and  which  said 
land  and  premises  form  the  bank  and  shore  of  the  waters  of 
the river. 

Plaintiffs  further  show  that  the  said  corporation  is  casting, 
emptying,  unloading  and  suffering  and  causing  to  be  cast, 
emptied  and  unloaded,  large  quantities  of  slate,  gravel,  rub- 
bish, slags,  earth,  cinders,  waste,  refuse  and  other  materials 


BILLS   IN    SPECIAL   CASES.  677 

into   the   said  river,   a   navigable   river   of  the   United 

States,  tending  to  impede  and  obstruct  the  navigation  and  the 
navigabihty  of  said  waters  of  the  United  States ;  and  the  said 
defendant  is  depositing  and  causing  to  be  deposited,  and  suf- 
fering to  be  deposited  and  placed,  large  quantities  of  slate, 
stone,  gravel,  earth,  rubbish,  wreck,  refuse,  waste  and  other 

materials  on  the  shore  and  bank  of  said  river  south  of 

and  upon  the  land  occupied  as  the  premises  of  the  defendant, 
where   the  same  is   liable   to  be   washed   into  the   navigable 

waters  of  said river  by  the  ordinary  floods  and  rises  of 

said  river,  to  the  permanent  obstruction  and  detriment  of  its 
navigation,  and  contrary  to  the  provisions  of  Section  6  of  an 
act  entitled,  "An  act  making  appropriation  for  the  construc- 
tion, repair  and  preservation  of  certain  public  works  on  rivers 
and  harbors,  and  for  other  purposes,"  approved  September 
19,  1890(2),  and  to  the  irreparable  injury,  obstruction  and 
detriment  of  the  said  river,  for  which  plaintiflFs  have  no  ade- 
quate remedy  at  law. 

And  this  casting,  emptying  and  unloading  of  which  plain- 
tiffs complain  is  not  for  the  purpose  of  being  used  in  the 
building,  repairing  or  keeping  in  repair  any  quay,  pier,  wharf, 
weir,  bridge,  building  or  other  work  lawfully  erected  or  to  be 
erected  on  the  banks  on  sides  of  said  navigable  river,  or  to 
the  casting  out,  unlading  or  depositing  of  any  material  exca- 
vated for  the  improvement  of  said  river,  or  the  depositing  of 
any  substance  above  mentioned  under  a  permit  from  the 
secretary  of  war,  in  any  place  designated  by  him  where  navi- 
gation would  not  be  obstructed,  as  allowed  and  permitted  as 
set  forth  in  the  proviso  to  Section  6  of  the  act  aforesaid. 

Plaintiffs  therefore  pray  a  writ  of  injunction  may  issue  to 
the  said  C.  &  D.  Railroad  Company,  perpetually  enjoining  it 
from  making  said  obstruction,  and  creating  and  continuing  to 
create  said  unlawful   obstruction   to  the   navigability   of  the 

said  waters  of  the  river,  and  perpetually  enjoining  it 

from  filling  and  dumping  said  material  along  the  river  bank 

between  the   [city  water  works]  and  the  lower  side  of  

street,  in  said  city,  except  so  far  as  may  be  necessary  to  pro- 
tect their  railroad  tracks  from  the  wash  of  the  river ;  and  this 


678  SUITS    IN    EQUITY. 

last-named  filling  not  to  exceed  a  width  of  six  feet  beyond 
the  outer  rail  of  the  tracks  of  said  railroad  as  now  laid  down ; 
and  if  it  shall  be  found  by  this  honorable  court  that  the  de- 
fendant is  creating  and  making  the  said  unlawful  obstruction 

to  the  navigability  to  the  said  waters  of  the river,  as  set 

forth  in  this  bill,  that  the  defendant  be  also  ordered  to  remove 
the  same;  and  that  a  temporary  restraining  order  may  issue 
enjoining  it  from  further  dumping  or  depositing  the  material 
as  aforesaid,  as  specifically  set  forth  in  this  paragraph,  until 
the  final  hearing  of  this  cause,  and  for  other  and  further  re- 
lief as  may  be  proper  in  the  premises.  J.  H., 

United  States  Attorney  for  the 

District  of . 

The  United  States  of  America, 
District  of ,  ss. 

Now  comes  J-  H.,  attorney  for  the  United  States,  and  says 
that  he  has  read  the  foregoing  bill  of  complaint,  and  believes 
the  facts  stated  therein  to  be  true.  J.  H. 

Sworn  to  before  me  and  subscribed   in  my  presence  this 

day  of ,  1894.  J.  N., 

[Seal.]  United  States  Commissioner 

for  said  District. 

(1)  Taken  from  the  record  in  U.  S.  v.  The  Louisville  &  Nashville 
Railroad  Company,  in  the  Circuit  (now  District)  Court  of  the  United 
States  for  the  Southern  District  of  Ohio. 

(2)  See  26  Stat.  L.  426. 


No.  467. 

Bill  to  Enjoin  the  Certification  of  Value  of  Telephone  Com- 
pany for  Taxation.  (1) 

[Caption.] 

To  the  Honorable,  the  Judge  of  the  District  Court (2)  of  the 
United  States  in  and  for  the  Middle  District  of  Ten- 
nessee : 

The  East  Tennessee  Telephone  Company,  a  corporation 
chartered  and  existing  under  and  by  virtue  of  the  laws  of  the 
state  of  Kentucky  and  having  its  chief  ofiice  or  place  of  busi- 


BILLS    IN    SPECIAL    CASES.  6/9 

ness  in  Warren  county,  in  said  state,  brings  this,  its  bill  of 
complaint,  against  Robert  L.  Taylor,  Governor  of  Tennessee; 
E.  B.  Craig,  Treasurer  of  Tennessee,  and  William  S.  Mor- 
gan, Secretary  of  State  of  Tennessee,  all  citizens  of  Ten- 
nessee. 

Plaintiff  respectfully  represents  and  snows  that  it  is  a  cor- 
poration of  the  state  of  Kentucky,  engaged  in  the  telephone 
business,  with  power  to  engage  in  the  telegraph  business.  It 
has  lines  and  exchanges  in  Tennessee  and  Kentucky,  but  its 
Tennessee  plant  is  not  physically  connected  with  its  Ken- 
tucky plant.  It  has  filed  its  charter,  or  a  certified  copy  there- 
of, with  the  secretary  of  state  of  Tennessee,  and  abstracts 
thereof  have  been  duly  recorded  in  the  registers'  offices  of  the 
counties  of  Tennessee  in  which  it  does  business,  and  it  has 
authority  to  do  business  in  Tennessee.     It  does  business  and 

has  exchanges  and  toll  stations  and  lines  in counties  in 

Tennessee  and  in  municipal  corporations  in  almost  every  one 
of  the  same.  It  pays  a  privilege  tax  for  doing  business  in 
Tennessee,  to  the  state,  amounting  to  $1,157.25.  It  has  2,135 
miles  of  wire  in  Tennessee.  It  has  been  assessed  at  $95  per 
mile  on  its  lines,  or  $2,031.10  in  all.  Less  than  one-half  of 
the  property  is  in  Tennessee.  It  has  no  outstanding  bonds  and 
its  stock  has  no  market  value ;  the  company  has  not  paid  a 
dividend  since  1894;  its  exchanges  will  average  about  fifty 
wires  to  the  pole  mile  and  have  cost  less  than  $20  per  wire 
mile  to  erect  and  can  be  reconstructed  at  the  same  price.  Its 
entire  plant,  poles,  wires,  etc.,  can  be  reconstructed  anew  in 
Tennessee  for  less  than  seventy-five  thousand  dollars,  and  the 
said  property,  to  wit,  its  poles,  wires,  batteries,  etc.,  in  Ten-: 
nessee  are  worth  less  than  $55,000.00. 

The  net  earnings  of  the  company  in  Tennessee  in  1896  were 
only  four  thousand  dollars ;  the  net  earnings  for  the  first  half 
of  1897  were  $2,043.88.  Its  earnings  in  Kentucky  for  the 
last  fiscal  year  were  $16,097.97.  It  has  long-distance  con- 
nection in  that  state  with  large  cities  like   Cincinnati  and 


680'  SUITS    IN    EQUITY. 

"Louisville  and  is  free  from  force  and  competition.  It  has 
competition  of  that  character  in  Tennessee  at  two  of  its  princi- 
pal cities.  Its  rates  are  thirty  dollars  and  thirty-six  dollars 
for  ground  circuits  at  Lexington,  Kentucky,  its  largest  Ken- 
tucky exchange,  and  only  eighteen  and  twenty-four  at  Knox- 
ville,  Tennessee,  where  said  competition  exists.  Its  property 
was  valued  for  taxation  -and  assessed  last  year  in  Tennessee 
for  $45,240,  and  never  has  been  assessed  at  a  higher  rate. 
Telephone  property  is  of  a  precarious  rate,  owing  to  the  dele- 
terious and  destructive  effect  of  the  sulphur  in  coal  smoke, 
telephone  wires  have  to  be  renewed  on  an  average  every  five 
years.  Moreover,  they  are  subject  to  great  injury  from  storms 
and  sleet.  The  stations,  lines  and  exchanges  of  plaintiff  are 
all  situated  in  East  Tennessee,  The  valuation  of  its  property 
in  Kentucky  for  taxation  is  about  the  same  as  that  which  has 
heretofore  prevailed  in  Tennessee  and  the  property  is  substan- 
tially of  the  same  description  and  value. 

Plaintiff  now  further  shows  that  its  said  property  in  Ten- 
nessee, taxed  as  aforesaid,  is  all  of  the  value  of  less  than  fifty- 
five  thousand  dollars.  The  capital  stock  of  the  company  is 
three  hundred  thousand  dollars,  and  is  not  worth  its  par 
value.  There  has  been  no  market  or  sale  of  the  same  for 
years  and  if  sold  upon  the  market  it  could  not  be  sold  for  fifty 
cents  on  the  dollar. 

Plaintiff  now  further  shows  and  says  that,  in  pursuance  of 
Section  4,  Chapter  5,  of  the  Acts  of  Tennessee  of  1897,  pro- 
viding for  the  assessment  and  collection  of  revenue  for  state, 
county  and  municipal  purposes,  whereby  revenue  is  collected 
•from  the  assessments  of  railroad,  telephone  and  telegraph 
property  in  Tennessee,  Hons.  E.  L.  Bullock,  F.  M.  Thompson 
and  N.  H.  White  were  appointed  commissioners  by  the  gov- 
ernor of  Tennessee  to  act  as  assessors  under  the  said  Act,  and 
it  shows  that  the  said  commissioners,  acting  as  assessors 
thereunder,  received  from  the  comptroller  the  schedule  re- 
quired to  be  filed  with  him  by  the  said  Act  and  proceeded  to 


BILLS    IX    SPECIAL    CASES.  681 

ascertain  the  value  of  said  property  for  taxation.  Plaintiff 
filed  with  it  the  schedules  required  by  law.  Said  commission- 
ers had  before  them  as  evidence  of  value  the  said  schedules 
and  also  the  deposition  taken  by  plaintiff  of  J.  W.  Hunter,  its 
secretary,  and  also  the  affidavits  of  evidence  hereinafter  men- 
tioned. 

Plaintiff  further  shows  that  Section  5  of  said  Act  pro- 
vides that  the  assessors  in  arriving  at  the  valuation  of  the 
property  to  be  assessed,  shall  have  in  view  and  look  to,  the 
capital  stock,  corporate  property,  franchises  and  gross  receipts 
and  the  market  value  of  the  shares  of  stock  and  bonded  debt. 
It  is  provided  in  Section  7  of  said  Act,  that  the  franchises  and 
choses  in  action  and  personal  property  of  the  company,  hav- 
ing no  actual  situs,  shall  be  known  as  distributable  property 
and  shall  be  valued  separately  from  the  other  property,  and 
after  ascertaining  the  total  value  of  such  distributable  prop- 
erty, wherever  situated,  and  after  having  deducted  from  this 
value  one  thousand  dollars,  said  assessors  shall  divide  the 
remainder  by  the  number  of  miles  of  the  entire  length  of  the 
telephone  lines,  "and  the  result  shall  be  the  value  per  mile  of 
such  distributable  property  for  the  purposes  of  taxation,  and 
the  value  per  mile  of  such  distributable  property  shall  be  mul- 
tiplied by  the  number  of  miles  in  the  state  and  the  product 
thereof  shall  be  the  sum  to  be  assessed  against  such  property 
for  state  purposes ;  and  the  value  so  ascertained  shall  be  mul- 
tiplied by  the  number  of  miles  in  each  county  or  incorporated 
city  or  town,  and  the  product  shall,  be  amount  to,  be  assessed 
against  such  property  by  such  counties,  incorporated  towns 
and  cities,  respectively. 

Section  8  provides  that  for  the  assessment  of  that  class  of 
realty  which  does  not  form  a  part  of  the  lines  of  the  telephone 
proper.  This  bill  of  complaint,  however,  only  has  reference 
to  the  assessment  of  distributable  property. 

Upon  all  of  said  evidence  the  said  assessors  proceeded  to 
assess,  and  did  assess,  the  distributable  property  situated  in 


682  SUITS    IN    EQUITY. 

the  state  of  Tennessee  at  three  hundred  dollars  per  mile  or  at 
about  two  hundred  dollars  per  mile  more  than  it  had  ever 
been  assessed  for  in  Tennessee,  and  about  two  hundred  and 
fifty  dollars  per  mile  more  than  the  other  states  it  traverses 
assessed  it  for. 

They  assessed  it  for  this  valuation  for  the  years  1897  and 
1898,  both.  Plaintiff  shows  that  all  said  properties  were  and 
are  already  lawfully  assessed  for  the  year  1897,  and  that  the 
said  assessments  are  yet  in  force  and  have  never  in  any  way 
been  annulled  and  superseded  and  that  they  are  judgments  and 
enforceable  as  such  by  the  state  of  Tennessee  and  the  several 
counties,  cities  and  towns,  through  which  the  said  company's 
lines  run  in  the  state  of  Tennessee  and  that  there  is  no  author- 
ity in  law  for  making  another  assessment  of  said  property  for 
1897.  The  said  assessment  for  1897  was  certified  down  to 
the  counties  and  towns  by  the  comptroller  of  the  state  as 
early  as  October,  1896.  They  were  completed  final  assess- 
ments before  the  Act  of  1897  was  passed.  The  said  Act  of 
1897  did  not  directly,  nor  by  implication,  repeal  or  set  aside 
said  assessments  or  have  any  retrospective  effect  upon  them, 
neither  does  it  contemplate  or  direct  a  reassessment  for  1897 
to  be  made, 

In  pursuance  of  Section  1 1  of  said  assessment  Act,  plaintiff 
appeared  before  said  commission  and  filed  exceptions  to  said 
assessments  and  the  depositions  of  divers  witnesses.  They 
also  filed  in  their  behalf  before  said  assessors  a  large  number  of 
affidavits,  about  155  in  all,  made  by  tax  assessors,  trustees  and 
other  officials  and  real  estate  owners,  which  showed  that 
within  the  counties  through  which  plaintiff's  lines  ran  and  in 
the  counties  in  Tennessee  through  which  plaintiff's  said  tele- 
phone properties  assessed  by  said  assessors,  ran,  and  in  the 
counties  in  Tennessee  through  which  other  telephone  proper- 
ties assessed  by  said  assessors,  ran,  real  estate  generally  and 
systematically  was  assessed  for  taxation  at  from  fifty  to  seven- 
ty per  cent,  of  its  value.     These  affidavits  varied  in  form,  but 


BILLS    IN    SPECIAL    CASES. 


683 


the  general  tenor  and  result  of  them  and  the  depositions  taken, 
is  to  establish,  and  your  plaintiff  alleges  it  to  be  a  fact,  that 
property  generally  in  Tennessee,  other  than  telephone  prop- 
erty, by  assessments  generally  and  purposely  made,  does  not 
bear  the  burden  of  taxation  at  a  greater  proportion  than  an 
average  of  sixty  per  cent,  of  its  market  value. 

Plaintiff  further  shows  that  it  also  filed  the  affidavits  of 
Jos.  H.  Thompson,  Wm.  A.  Goodwin,  Samuel  J.  Keith  and 
Edgar  Jones,  which  establish  that  the  quoted  market  value  of 
stocks  and  bonds  resting  upon  railroads,  telephone  and  other 
property,  represented  by  stocks  and  bonds,  are  not  even  ap- 
proximately conclusive  of  the  actual  value  of  property  cov- 
ered by  them,  that  the  stock  quotations  of  particular  days,  as 
they  appear  in  the  New  York  Financial  Chronicle  and  simi- 
lar papers  are  no  actual  criterion  of  the  market  value  of 
stocks  and  bonds  on  those  days ;  that  it  is  not  a  correct  or  safe 
basis  to  take  the  earnings,  either  gross  or  net,  of  such  property 
as  a  railroad  or  a  telephone  company,  as  approximately  conclu- 
sive of  the  actual  value  of  the  property  covered  by  them ;  that 
even  if  net  earnings  should  be  taken  into  consideration,  it 
should  not  be  assessed  upon  any  such  basis  as  the  legal  rate 
of  interest  in  Tennessee,  but  should  be,  in  order  to  give  a 
proper  allowance  for  the  hazard  of  the  investment,  estimated 
on  a  basis  of  at  least  twelve  per  cent. 

Plaintiff  avers  that  these  statements  are  fat:ts  and  that  they 
are  all  material  and  far-reaching  in  the  matter  of  making 
these  assessments  and  were  attested  by  men  of  very  large 
financial  experience.  A  copy  of  said  affidavits  is  attached 
hereto  marked  exhibit  "  B  "  as  part  hereof. 

The  said  assessors  admitted  as  competent  evidence  all  of 
the  affidavits  of  the  class  first  referred  to,  but  erroneously  ex- 
cluded as  evidence  the  depositions  of  Thompson,  Goodwin, 
Keith  and  Jones,  and  solely  upon  the  ground  that  affiants  were 
residents  of  Nashville,  and  for  this  reason  should  have  been 
produced  in  person  as  witnesses  before  the  commission.    They 


684  SUITS    IN    EQUITY. 

overruled  all  of  petitioner's  exceptions  and  let  the  assessments 
as  made  by  them  stand. 

They  filed  with  the  comptroller,  as  provided  for  in  Section 
II,  their  said  assessment,  together  with  the  record  made  up 
by  them. 

Plaintiff  further  sliows  that  by  Section  12  of  said  Act,  the 
governor,  treasurer  and  secretary  of  state,  are  made  a  board 
of  equalization.  It  is  made  their  duty  as  board  of  equaliza- 
tion to  proceed  to  examine  the  assessments  made  by  the  as- 
sessors, and  they  are  authorized  and  directed  to  increase  or 
diminish  the  valuation  placed  upon  any  property  and  to  require 
of  said  assessors  any  additional  evidence  touching  any  one  or 
more  of  the  same.  The  assessments  are  not  to  be  deemed  com- 
plete until  corrected  by  the  said  board  of  equalization. 

Plaintiff  shows  that  under  the  former  tax  laws  of  the  state 
of  Ten-nessee  for  assessing  such  property  as  that  of  your  ora- 
tor, the  governor,  treasurer  and  secretary  of  state  constituted  a 
board  of  commissioners ;  it  was  not  a  board  of  equalization. 
Orator  avers  that  under  the  Act  of  1897  the  said  three  officers 
are  made  a  board  of  equalization  and  that,  being  officers 
sworn  to  uphold  the  constitution  of  the  state,  which  requires 
that  all  taxes  shall  be  equal'and  uniform  and  that  no  one  spe- 
cies of  property  shall  be  taxed  higher  than  other  species  of 
property  of  the  same  value,  and  being  at  the  same  time  en- 
trusted with  the  duty  of  assessing  and  equalizing  taxes,  they 
were  not  only  authorized,  but  it  was  obligatory  upon  them  to 
assess  petitioner's  property  so  that  it  would  not  bear  more  than 
its  equal  and  just  burden  under  the  constitution  as  compared 
with  other  property  in  this  state. 

The  comptroller  delivered  to  the  said  equalizers  the  assess- 
ments and  records  made  up  by  the  said  assessors  and  said 
equalizers,  after  considering  said  assessments,  did,  on  the 
1 6th  day  of  November,  1897,  conclude  and  determine  as  fol- 
lows : 

First.  They  excluded  Poor's  Manual  as  evidence. 


BILLS    IN    SPECIAL    CASES.  685 

Second.  They  excluded  the  affidavits  of  Thompson,  Good- 
win, Keith  and  Jones  as  evidence. 

Third.  They  overruled  plaintiff's  exceptions  to  the  deposi- 
tions of  Shepherd  and  Frazer  and  the  Financial  Chronicle  ex- 
hibited with  them  and  looked  to  the  same  as  evidence. 

Fourth.  They  overruled  the  exceptions  to  the  assessment 
for  1897  and  they  affirmed  the  action  of  the  assessors  in  over- 
ruling plaintiff's  exceptions  in  assessing  all  of  said  property 
for  the  years  1897  and  1898  at  "the  valuation  stated  above. 

Fifth.  They,  after  finding  the  valuation  of  said  property, 
refused  to  make  any  deductions  from  the  actual  valuation  as 
ascertained  by  them,  on  account  of  the  assessment  of  their 
property  in  the  state  of  Tennessee  for  less  than  its  value  and 
refused  to  equalize  the  property  of  plaintiff  for  taxation  with 
other  property  in  the  state  of  Tennessee.  Every  of  which 
actions  was  illegal  and  unauthorized. 

In  all  other  respects  they  affirmed  the  acts  of  the  assessors. 

Plaintiff  avers  that  all  of  said  assessments  besides  being  im- 
properly made  and  not  according  to  law,  are  excessive,  op- 
pressive and  illegal  and  that  there  is  no  competent  evidence 
in  the  record  on  which  to  sustain  them.  The  present  assess- 
ments and  of  former  years  and  the  assessments  of  the  same 
line  in  other  states  into  which  it  extends  have  been  heretofore 
shown. 

Defendant,  William  S.  Morgan,  was  secretary  of  state  of 
Tennessee  during  the  years  1895  ^^^  1896,  and  E.  B.  Craig 
was  treasurer  at  the  same  time.  As  ex-oMcio  examiners  for 
the  year  1896,  they  assessed  said  telephone  property  at  forty 
dollars  per  mile;  there  was  no  general  rise  of  value  of  tele- 
phone property  or  any  other  property  in  the  state  of  Ten- 
nessee between  the  times  said  assessments  were  so  made  by 
them  and  January  10,  1897.  On  the  contrary,  all  property, 
including  telephone  property,  was  most  severely  depressed  dur- 
ing 1896.     There  has  been  no  increase  in  the  taxable  value 


686 


SUITS    IN    EQUITY. 


of  Other  property  in  the  state  of  Tennessee  for  1897,  as  com- 
pared with  the  said  preceding  years. 

In  pursuance  of  said  assessment  Act,  said  board  of  equal- 
izers will,  as  they  have  informed  your  plaintiff's  counsel, 
unless  prevented,  at  twelve  o'clock,  noon,  November  20,  1897, 
certify  to  the  comptroller  the  valuations  so  placed  by  them 
upon  said  property.  The  comptroller  will  proceed,  after  said 
assessments  have  been  certified  to  him,  according  to  the  course 
of  law,  to  collect  for  the  state  taxes  so  wrongfully  assessed 
and  will  certify  to  the  several  towns,  and  cities  and  counties 
of  the  state  through  which  said  telephone  lines  pass,  the  said 
assessments  and  the  said  towns,  cities  and  counties  will  pro- 
ceed under  said  Act  to  collect  the  same.  Under  said  Act 
taxes  so  assessed  in  behalf  of  the  state,  counties,  town  and 
cities  will  become  a  first  lien  upon  the  property  from  the  loth 
of  January,  189 — ,  of  the  year  of  which  they  are  assessed. 
If  the  said  taxes  are  not  paid  as  assessed,  distress  warrants 
will  issue  against  your  plaintiff,  and  if  it  shall  not  pay  the 
same,  then  the  comptroller  will,  under  said  Act,  advertise 
said  property  and  sell  the  same  for  cash  free  from  the  equity 
of  redemption  and  execute  to  the  purchaser  any  deed  or 
deeds. 

Plaintiff  charges  and  says  that  the  action  of  the  said  board 
of  assessors  and  the  said  board  of  equalizers  was  arbitrary,  op- 
pressive and  in  violation  of  the  law,  and  will  fix  upon  plaintiff 
a  charge  for  which  there  is  no  proof  before  them  to  warrant 
and  impose  upon  plaintiff  a  burden  unjust  and  unequal  as 
between  its  and  other  property  throughout  the  state ;  that  said 
board  acted  in  violation  of  the  letter  and  spirit  of  the  constitu- 
tion and  not  upon  the  proper  authority,  and  erred  as  well  in 
excluding  competent  evidence  offered  by  petitioner,  as  in  look- 
ing to  and  considering  incompetent  evidence  adduced  by  the 
assessors. 

Plaintiff  further  shows  that  Chapter  5  of  the  Acts  of  1897, 
under  which  the  assessors  and  commissioners  aforesaid  have 


BILLS    IN    SPECIAL    CASES. 


687 


assumed  to  proceed,  is  unconstitutional  and  void  in  that  it 
contains  two  subjects  in  its  caption  and  its  body,  to  wit:  (i) 
Provides  for  the  assessment  and  collection  of  revenue  for  state 
and  county  purposes.  (2)  And  provides  for  the  assessment 
and  collection  of  revenue  for  municipal  purposes.  And  for 
this  reason,  said  assessments  are  null  and  void. 

Recognizing  the  fact  that  throughout  the  state  of  Tennebsee 
property  has  been  systematically  assessed  for  a  time  immemo- 
rial at  a  valuation  for  the  purpose  of  taxation  greatly  less 
than  its  actual  value  and  at  a  valuation  ranging  from  fifty  to 
about  sixty-five  per  cent,  thereof,  the  state  of  Tennessee, 
through  its  board  of  assessors  and  equalizers  during  the  years 
of  1895  and  1896,  endeavored  to  systematize  the  county  assess- 
ments and  bring  them  up  to  a  common  basis  or  standard  of 
valuation.  Accordingly,  said  board  established  as  the  basis 
for  assessment  for  taxation,  in  all  the  counties  of  the  state, 
seventy-five  per  cent,  of  the  actual  or  true  value  of  the  lands 
or  property  to  be  assessed  and  raised  the  assessment  in  the 
various  counties  of  the  state  for  both  said  years,  where  they 
were  less  than  seventy-five  per  cent,  to  seventy-five  per  cent. 

Plaintiff  further  shows  that  the  said  board  of  assessors  and 
equalizers  was  the  first  state  board  of  equalizers  in  the  state 
of  Tennessee  and  its  establishment  was  a  legislative  recognition 
of  the  systematic  usage  and  custom  of  valuation  prevailing 
and  of  the  legislative  purpose  to  render  it  uniform  throughout 
the  state. 

Plaintiff  further  says  that  the  said  state  board  of  assessors 
and  equalizers  was  not  only  trusted  with  the  power  of  equal- 
izing assessments  throughout  the  state,  but  also  with  the  duty 
of  assessing  railroad,  telegraph  and  telephone  properties  for 
taxation,  and  it  avers  and  charges  that  the  assessment,  made 
by  said  board  and  valuations  fixed  upon  said  property  were 
made  by  them  at  the  rates  fixed  for  the  purpose  of  equalizing 
the  assessments  of  such  property  with  those  of  the  lands  in 
Tennessee. 


688 


SUITS    IN    EQUITY. 


Plaintiff  is  informed  and  believes  and  thereupon  charges 
and  says  that  the  system  of  taxation,  which  has  prevailed  in 
Tennessee,  viz. :  of  assessing  property  at  less  than  its  value, 
has  also  prevailed  throughout  the  states  of  the  Union  and  has 
been  adopted  and  acted  upon  upon  grounds  of  public  policy, 
the  idea  being  the  government  could  be  more  economically  ad- 
ministered and  the  public  revenues  better  husbanded  from 
extravagant  appropriations  by  so  adjusting  the  rate  of  taxa- 
tion to  the  valuation  of  the  property  to  be  taxed  as  to  require 
all  demands  for  increase  of  public  revenues  to  be  met  through 
a  raising  of  the  rate  of  taxation  instead  of  the  assessment. 
In  this  way  the  question  of  taxation  can  be  and  has  been  kept 
in  a  position  to  receive  public  consideration. 

The  value  fixed  by  the  said  board  is  greatly  in  excess  of  the 
value  shown  in  the  proof  in  the  record  before  said  board. 
The  system  by  which  they  proceeded  to  ascertain  and  the  said 
value  is  erroneous,  as  hereinbefore  shown.  The  said  taxation 
is  unequal,  unconstitutional  and  void. 

The  aforesaid  persons,  to  wit,  R.  L.  Bullock,  N.  H.  White 
and  F.  M.  Thompson,  who  have  assumed  to  make  said  assess- 
ment and  assessments,  were  never  appointed  or  qualified  as 
tax  assessors  of  railroads  or  other  property  for  the  state  of 
Tennessee  for  the  years  1897  and  1898  under  and  by  virtue 
of  the  published  Acts  of  Tennessee  of  1897,  Chapter  V.  They 
have  assumed  to  exercise  the  authority  of  tax  assessors  and 
have  made  said  assessments  only  as  ex-officio  commissioners 
by  virtue  of  being  commissioned  railroad  commissioners  of  the 
state  of  Tennessee,  under  and  by  virtue  of  authority  under 
Chapter  X.  of  the  published  Acts  of  Tennessee  of  1897.  The 
said  Act  is  unconstitutional  and  void  and  said  commissioners 
were  illegally  appointed  and  have  no  power  to  make  said  as- 
sessments or  perform  any  acts  under  and  by  virtue  of  the  said 
Act.  Said  Act  is  in  contravention  of  the  Constitution  of  the 
United  States  and  of  the  state  of  Tennessee,  and  is  void  for 
the  following  reasons : 


BILLS    IN    SPECIAL    CASES.  689 

First.  There  are  entirely  different  and  distinct  subjects  em- 
braced in  the  title  and  the  body  of  the  Act,  namely;  (a)  the 
creation  of  a  railroad  commission  and  the  defining  of  its 
powers  and  duties,  with  provisions  to  secure  the  due  enforce- 
ment of  the  lawful  orders,  rules  and  regulations;  (b)  the  pro- 
hibition of  extortion,  unjust  discrimination  and  undue  and 
unreasonable  preferences  by  persons  and  companies  operating 
railroads  in  their  charges  for  transportation  of  freight  and 
passengers,  and  making  such  acts,  when  committed  by  a  rail- 
road corporation,  a  misdemeanor,  and  imposing  penalties  for 
the  same;  (c)  it  provides  adequate  civil  remedies  to  redress 
such  extortions,  unjust  discriminations  and  undue  and  unrea- 
sonable preferences. 

Second.  Said  Act  provides  that  any  railroad  corporation 
that  shall  be  guilty  of  extortion  or  unjust  discriminations,  or 
of  giving  any  person,  or  locality,  or  of  any  discriminations  in 
traffic,  or  any  undue  or  unreasonable  preferences  or  advan- 
tages, shall,  upon  conviction,  be  fined  not  less  than  five  hundred 
dollars  nor  more  than  two  thousand  dollars.  These  penalties 
are  confined  to  railroad  corporations,  and  do  not  include  per- 
sons or  individuals  or  partnerships  engaged  in  the  same  busi- 
ness, and  the  law  is  therefore  partial,  unequal  and  class  legis- 
lation. 

Third.  The  said  Act  provides  that  every  witness  who  shall 
appear  before  the  commission  by  its  order  shall  receive  his  at- 
tendance and  compensation  as  provided  by  law  out  of  the 
state  treasury,  but  provides  that  no  witness  summoned  at  the 
instance  of  a  railroad,  who  is  directly  or  indirectly  interested  in 
any  stock,  bond,  mortgage,  security  or  earnings  of  any  such 
road,  or  who  shall  be  the  agent  or  employe  of  such  road,  shall 
be  entitled  to  any  witness  fees  or  mileage  for  attendance. 
This  classification  is  purely  arbitrary.  It  is  class  legislation 
and  unlawful  discrimination,  and  not  in  accordance  with  the 
laws  of  the  land. 


690  SUITS    IN    EQUITY. 

Fourth.  The  title  of  the  Act  purports  to  make  the  provisions 
of  the  Act  apphcable  to  all  railroad  companies  and  other  per- 
sons operating  railroads  in  the  state  of  Tennessee.  Yet,  while 
Section  15  applies  to  every  common  carrier  (as  defined  in 
Section  14),  the  operation  of  Section  16  is  confined  to  "  rail- 
road corporations  "  alone. 

Again,  Section  16  defines  extortion  as  applied  to  a  railroad 
corporation,  but  leaves  it  undefined  as  to  all  other  "  common 
carriers,"  namely,  as  to  all  other  persons  operating  railroads 
in  this  state,  thus  making  an  unlawful  discrimination  and  sub- 
jecting railroad  corporations  to  penalties  contrary  to  the  con- 
stitution of  the  state  of  Tennessee  and  inconsistent  with  the 
law  of  the  land. 

Fifth.  Section  17  makes  it  unlawful  for  any  corporation, 
whether  railroad  corporation  or  not,  to  give  an  undue  or  un- 
reasonable preference,  but  it  does  not  apply  to  "  persons  operat- 
ing railroads  in  this  state,"  which  may  be  individuals  or  part- 
nerships, and  not  corporations.  This  section  thus  discrimin- 
ates unlawfully  against  corporations.  This  is  class  legislation 
and  unconstitutional. 

Sixth.  Again,  Section  16  applies  not  only  to  persons  and 
any  other  "common  carrier,"  but  Section  19  imposes  upon 
railroad  corporations  alone  a  fine  of  not  less  than  $500,  and 
not  more  than  $2,000  for  "  extortion,"  or  for  "  unjust  dis- 
crimination," or  for  "  giving  any  person  or  locality  or  any 
description  of  traffic  an  undue  or  unreasonable  preference  or 
advantage."  This  is  unlawful  discrimination,  class  legislation 
and  unconstitutional. 

The  title  of  the  Act  embraces  both  individuals  and  corpora- 
tions, but  the  penalties  apply  only  to  corporations. 

Seventh.  Again,  under  said  Act,  indictments  or  present- 
ments under  this  Act  shall  be  preferred  only  upon  recom- 
mendation or  request  of  the  railroad  commission  filed  in  the 
court  having  jurisdiction. 

This  delegates  to  the  commission  the  power  to  suspend  the 


BILLS    IN    SPECIAL    CASES.  691 

criminal  law,  and  practically  takes  out  of  the  hands  of  the 
grand  juries  and  criminal  courts  of  the  state  the  power  to  in- 
vestigate certain  crimes  and  misdemeanors.  Being  an  unlaw- 
ful delegation  of  legislative  authority,  it  is  unconstitutional 
and  void  and  makes  said  Act  unconstitutional  and  void. 

Eighth.  Again,  Section  i8  prohibits  the  charging  of  any 
greater  compensation  for  the  transportation  of  passengers  or 
property  for  a  shorter  than  for  a  longer  distance  over  the 
same  line  in  the  same  direction,  making  it  a  misdemeanor 
and  fixing  the  penalty  at  not  less  than  $ioo  and  not  more  than 
$500. 

Section  33  provides  that  the  commission,  in  its  discretion, 
may  suspend  this  law  whenever  they  see  proper  to  do  so. 
This  is  a  delegation  of  the  legislative  function,  is  not  the 
law  of  the  land,  it  is  unconstitutional  and  the  Act  containing 
it  is  void. 

Ninth.  Section  28  provides  that  every  railroad  company 
that  shall  fail  or  refuse,  under  such  regulations  as  may  be  pre- 
scribed by  the  commission,  to  receive  and  transport  without 
delay  and  discrimination  the  passengers,  tonnage  and  cars, 
loaded  or  empty  of  any  connecting  line  of  railroad  or  other 
common  carrier  by  water  or  land,  and  every  railroad  which 
shall,  under  such  regulations  as  may  be  prescribed  by  the  com- 
mission, fail  or  refuse  to  transport  and  deliver  without  dis- 
crimination any  passengers,  tonnage  and  cars,  loaded  or  empty, 
destined  to  any  points  over  the  line  of  any  connecting  railroad, 
or  shall  refuse  to  receive  and  transport  without  delay  any 
freight  consigned  to  any  person,  firm  or  corporation,  or  com- 
mon carrier  at  any  point  on  its  line,  or  at  any  point  on  any 
other  connecting  line  of  railroad,  shall  be  guilty  of  unjust 
discrimination. 

This  section  permits  the  commission  to  make  any  sort  of 
regulation,  reasonable  or  unreasonable,  with  respect  to  the 
transportation  of  freight  and  passengers.  The  railroad  is 
bound  to  accept  and  convey  such  freight  under  such.regula- 


692 


SUITS    IN    EQUITY. 


tions.  If  it  fails  to  do  so  it  is  guilty  of  "  unjust  discrimina- 
tion," and  the  penalty,  if  the  carrier  so  refusing,  be  a  "  railroad 
corporation,"  is  a  fine  of  not  less  than  $500,  and  not  more  than 
$2,000. 

The  railroads  have  no  opportunity  of  actively  contesting 
the  reasonableness  of  regulations  prescribed  by  the  commis- 
sion, but  irrespective  of  whether  they  be  reasonable  or  unrea- 
sonable, a  failure  to  convey  freight  or  passengers  in  accord- 
ance therewith  is,  under  Section  28,  "  unjust  discrimination," 
which  subjects  the  party,  if  a  **  railroad  corporation,"  to  the 
said  fine. 

This  is  not  due  process  of  law,  is  unconstitutional,  is  a  con- 
fiscation of  property  and  class  legislation,  and  does  not  give 
the  said  corporations  equal  protection  of  the  laws,  but  sub- 
jects them  to  undue,  unusuat,  harsh  and  illegal  and  discrim- 
inating burdens. 

Tenth.  The  provisions  of  said  Act  are  so  vague  and  in- 
definite as  to  render  it  unconstitutional  and  void.  Section  10 
defines  extortion  to  be  the  collection  of  more  than  a  just  and 
reasonable  rate  of  toll  or  compensation  for  the  transportation 
of  passengers  or  freight  in  this  state  and  for  the  use  of  any 
railroad  car  upon  its  track,  or  upon  any  track  it  controls  or  has 
the  right  tO'  use  in  this  state.  There  is  no  definition  by  which 
a  just  and  reasonable  rate  of  toll  or  compensation  may  be  de- 
termined ;  even  if  the  commission  fixes  a  regular  schedule  and 
the  railroads  shall  comply  therewith  it  may  yet  be  subjected 
to  indictment  and  be  found  by  a  jury  to  be  guilty  of  extortion. 
There  is  no  rule  laid  down  by  the  said  Act,  or  any  other  law  of 
the  state  of  Tennessee  by  which  a  jury  shall  be  guided  and  the 
railroad  company  cannot  know  whether  or  not  it  is  violating 
the  law,  and  there  is  no  standard  by  which  it  can  know  whether 
or  not  it  is  committing  an  offense.  No  citizen  or  property  or 
business  can  be  criminally  subjected  to  such  vague  and  in- 
definite j-ules  and  regulations  and  no  statute  subjecting  a  per- 


BILLS    IN    SPECIAL    CASES.  693 

son  or  corporation  to  prosecution  and  punishment  by  such 
vague  and  indefinite  terms  is  valid. 

Eleventh.  The  undue  and  unreasonable  preference  forbid- 
den by  Section  17  is  so  vague  and  indefinite  that  no  railroad 
can  know  when  it  has  violated  the  law  until  the  jury  in  "the 
particular  instance,  whether  in  a  civil  or  criminal  action,  has 
passed  upon  the  question.  Upon  the  same  state  of  facts  one 
jury  in  the  same  place  may,  under  the  same  law,  find  the  rail- 
road corporation  guilty  and  another  jury,  upon  the  same  set 
of  facts,  in  the  same  place,  and  under  the  same  law,  find  the 
defendant  innocent.  It  leaves  everything  to  the  caprice  of 
the  )ury. 

Twelfth.  Section  28  of  the  Act  gives  to  the  railroad  com- 
missioners power  to  give  special  rates  to  encourage  infant 
manufacturing  industries,  or  any  other  business  or  industry, 
or  for  the  transportation  of  any  perishable  goods.  This  puts 
it  in  the  power  of  the  commission  the  right  to  discriminate  be- 
tween persons  and  places  and  classes  of  business.  It  is  class 
legislation  and  the  delegation  of  legislative  power  and  it  con- 
fers upon  them  the  authority  to  suspend  the  criminal  provisions 
of  Section  19. 

Thirteenth.  Section  27  of  said  Act,  without  any  provisions 
being  made  therefor  in  the  caption,  and  the  same  being  an 
entirely  different  subject  from  the  main  features  of  the  bill, 
changes  the  order  of  business  in  the  courts,  and  gives 
precedence  to  those  suits  arising  out  of  the  regulations  made 
by  said  Act  and  orders  them  to  be  advanced  upon  the  docket, 
thus  making  the  Act  embrace  two  subjects  different  in  char- 
acter. 

Fourteenth.  Section  28  legislates  in  regard  to  the  failure  to 
transport,  without  delay,  persons  and  empty  or  loaded  cars, 
which  subject  is  not  provided  for  in  the  caption  and  is  a  differ- 
ent subject  from  that  set  out  in  the  caption  and  which  is  the 
general  purpose  of  the  bill  and  for  such  reasoii  said  Act  is 
unconstitutional  and  void. 


694  SUITS    IN    EQUITY. 

Premises  considered,  plaintiff  asks  leave  to  bring  this  bill 
against  Robert  L.  Taylor,  E.  B.  Craig  and  Wm.  S.  Morgan, 
ex-oMcio  the  board  of  equalization,  the  parties  named  in  the 
caption  as  defendants  hereto,  and  it  prays  for  the  writ  of  sub- 
poena to  issue  to  them,  commanding  them  to  appear  by  a  day 
certain  before  this  honorable  court  and  to  answer  the  allega- 
tions hereof,  but  not  under  oath,  which  is  waived. 

It  prays  for  the  writ  of  injunction  to  issue,  enjoining  them 
from  and  restraining  the  defendants  aforesaid  and  each  of 
them  from  certifying  the  record  of  their  action  in  the  matter 
in  the  premises  mentioned  or  the  valuation  fixed  by  them  as 
aforesaid  or  the  assessments  to  the  comptroller  of  the  state  oi 
Tennessee,  until  further  orders  herein,  to  the  end  that  the  jus- 
tice and  validity  of  the  said  assessments  may  be  determined. 

It  prays  that  the  said  injunction  may  be  made  perpetual, 
and  may  it  please  your  honors  to  grant  to  plaintiff  such  other 
and  further  relief  as  the  nature  of  the  circumstances  of  its  case 
may  require,  as  in  duty  bound  it  will  ever  pray.  This  is  the 
first  application  for  a  writ  of  injunction  in  this  case. 

X.  &  X., 
Solicitors  and  of  Counsel. 

State  of , 

County  of . 

I,  W.  H.,  do  make  oath  and  say  that  I  am  secretary 
of  the  East  Tennessee  Telephone  Company,  the  plaintiff 
above  named,  and  am  acquainted  with  its  affairs,  and  that  the 
matters  and  facts  stated  in  the  foregoing  bill  are  true  to  the 
best  of  my  knowledge,  information  and  belief. 

Sworn  to  and  subscribed  before  me,  this  the day  of 

.  A.  R., 

[Seal.']  Notary  Public. 

(1)  Taken  from  the  case  of  Taylor  v.  The  East  Tennessee  Telephone 
Company  in  the  Circuit  Court  for  the  Eastern  District  of  Tennessee  (not 
reported). 

(2)  Under  the  Judicial  Code  provisions  a  similar  case  today  would  be 
brought  in  the  District  Court  and  the  application  for  interlocutory  in- 
junction would  be  heard  by  three  judges,  under  Sec.  266. 


BILLS    IN    SPECIAL    CASES.  695 

No.  468. 

Bill  by  a  Telephone  Company  to  Enjoin  a  Competitor  from 
Connecting  with  its  Devices.(l) 

To  the  Honorable  Judge  of  the  District  Court  of  the  United 

States  for  the Division  of  the District  of . 

Your  complainant,  the  A.  B.  Telephone  Company,  respect- 
fully shows  to  the  honorable  court  that ;  it  is  a  corporation  or- 
ganized under  the  laws  of  the  state  of and  a  citizen  of 

said  state ;  that  it  has  complied  with  the  statutes  of  this  state ; 
that  it  has  been  for  many  years  engaged  in  transmitting  intel- 
ligence by  metallic  wires,  operating  and  maintaining  exchanges 

and  toll  lines  in  the  states  of and ,  and  for  the  past 

years  has  been  operating  an  exchange  in  the  city  of , 

and  attempting  to  give  to  its  patrons  and  subscribers  of 


and  the  surrounding  country  a  service  second  to  none,  known 
to  the  telephone  business  and  its  business  has  grown  from  a 
very  small  exchange  to  one  of  the  largest  in  the  country  in 

cities  the  size  of ,  and  its  patrons  and  subscribers  now 

number  eleven  hundred,  and  that  it  has  expended  large  amounts 
of  money  for  the  purpose  of  equipping  this  exchange  with  the 
most  modern  improved  instruments  and  devices  that  it  was 
able  to  procure  in  the  markets  of  the  country,  and  it  is.  neces- 
sary, from  time  to  time,  to  buy  modern  equipments  and  devices 
that  is  constantly  being  invented,  requiring  a  great  expenditure 
of  money  to  maintain  the  high  standard  of  service  that  it  is  now 

and  has  been  furnishing  to  the  people  of . 

Your  complainant  further  shows  to  the  honorable  court; 
that  some  four  and  a  half  years  ago  that  the  defendant,  C.  D., 
conceived  the  idea  of  entering  the  telephone  business  in  the  city 

of  ,  and  organized  the  defendant,  the  C.  D.  Telephone 

company  and  duly  incorporated  the  same  under  the  laws  of  the 

state  of ,  and  a  citizen  of  said  state  residing  in  the 

district  of ,  built  and  equipped  what  is  known  as  the  inde- 
pendent telephone  system  of ,  and  equipped  the  same  with 


696  SUITS    IN    EQUITY. 

instruments  or  phones,  that  was  in  the  opinion  of  your  com- 
plainant very  much  inferior  to  the  instruments  and  phones  used 
by  your  complainant,  and  the  defendant  company  has  been  an 
active  competitor  to  your  complainant  in  the  telephone  business 

in  the  city  of  ,  and  secured  a  strong  foothold  at  first, 

upon  the  ground  that  it  was  a  local  corporation  and  that  your 
complainant  was  a  foreign  corporation,  and  has  done  many 
things  to  harass  and  annoy  your  complainant.  But  your  com- 
plainant was  satisfied  and  its  judgment  has  largely  been  veri- 
fied, in  that  that  the  people  would  seek  the  telephone  company 
and  patronize  the  business  of  the  one  that  gave  to  its  sub- 
scribers the  most  efficient  service,  and  it  has  beeen  along  these 
lines  that  your  complainant  has  been  able,  for  the  past  two 
years  to  almost  double  the  patrons  and  subscribers  of  the  de- 
fendant company. 

Your  complainant  would  further  show  to  the  honorable 
court,  that  some  time  ago  that  the  defendant,  CD.,  through 
his  employes  and  agents,  over  the  protest  and  written  re- 
quest of  your  complainant,  attempted  to  impair  and  greatly  de- 
stroy the  superior  and  efficient  service  of  your  complainant, 
and  at  the  same  time,  derive  revenue  from  this  impairment  for 
the  defendant  company,  and  without  compensating  your  com- 
plainant for  the  use  of  its  property  by  giving  a  double  connec- 
tion to  the  subscriber  who  had  the  phones  of  both  the  defend- 
ant and  complainant  companies,  directly  connecting  your  com- 
plainant's property  with  the  property  of  the  defendant  com- 
pany, by  means  of  a  switch  that  connects  with  a  desk  phone, 
by  a  wire  running  from  the  phone  of  the  complainant  com- 
pany and  one  running  from  the  phone  or  wires  of  the  defend- 
ant company,  and  the  complainant  believes  and  charges  that 
the  instrument  used,  by  means  of  this  connection,  with  the 
wires  and  phones  of  your  complainant,  is  defective  and  infer- 
ior. A  diagram  of  this  connection  is  filed  with  this  bill  and 
marked  Exhibit  "  A." 


BILLS    IN    SPECIAL    CASES. 


697 


Your  complainant  further  shows  to  the  honorable  court, 
that  the  defendant  company  has  been  charging  yqur  complain- 
ant's subscribers  extra  compensation  for  the  use  and  connec- 
tion here  described  with  the  property  of  the  complainant  com- 
pany, and  this  revenue  is  received  by  the  defendants,  greatly  to 
the  impairment  and  expense  of  your  complainant,  because  that 
in  the  use  of  the  instruments  furnished,  being  inferior  and  de- 
fective, the  defendant  is  unable,  often  to  give  the  proper  con- 
nection, and  it  is  impossible  for  your  complainant  to  give  to 
its  patrons  and  subscribers  a  good  and  efficient  service,  and 
especially  is  this  true  in  the  long  distant  connection,  and  if  this 
is  permitted,  it  will  soon  cause  the  service  of  your  complainant 
to  be  dragged  down  to  the  same  low  standard  as  that  now  fur- 
nished by  the  defendant  company  to  its  patrons,  and  greatly 
damage  the  reputation  and  good  standing  of  your  complain- 
ant's efficient  and  good  service. 

Your  complainant  further  shows  to  the  honorable  court, 
that  notwithstanding  two  written  appeals,  to  C.  D.,  as  mana- 
ger, to  desist  and  immediately  stop  giving  or  making  these 
double*  connections,  the  defendant  has  persisted  in  contracting 
with  your  complainant's  subscribers,  but  as  to  the  exact  num- 
ber, your  complainant  is  not  advised,  but  believes  and  charges 
that  the  defendant  has  contracted  with  from  ten  to  fifteen  of 
your  complainant's  patrons  ,and  is  now  engaged  in  soliciting 
and  contracting  with  many  others  for  this  same  double  con- 
nection, and  if  not  enjoined  the  defendant,  will  continue  to  con- 
tract with  your  complainant's  subscribers,  and  in  this  way  use 
your  complainant's  property,  greatly  to  its  damage,  without 
any  compensation  to  your  complainant,  and  a  revenue  to  the 
defendant  company. 

Therefore  complainant  prays : 

That  injunction  be  ordered  by  the  honorable  court,  to  in- 
hibit and  restrain  the  defendant,  C.  D.,  his  agents  or  em- 
ployes,   directly   or   indirectly,    from   further   connecting  his 


698  SUITS    IN    EQUITY. 

property  with  your  complainant's  property  by  means  of  wires 
or  otherwise,  his  phones  or  switches  or  any  other  device. 

Your  complainant  further  prays  that  the  defendants  be 
enjoined  from  continuing  and  maintaining  the  connections 
heretofore  made,  and  that  are  wrongfully  being  operated  and 
maintained  by  the  defendants,  and  that  the  defendants  be  re- 
quired at  once  to  disconnect  all  wires  and  instruments  now 
connecting  the  wires  or  phones  of  the  defendant  company 
with  the  complainant  company. 

Your  complainant  further  prays  that  it  be  awarded  four 
thousand  dollars  damage  for  the  wrongful  connection  hereto- 
fore made  by  the  defendant. 

The  a.  B.  Telephone  Co. 

By  R.  X.,  Its  Solicitor. 

[Verification.] 

(1)  Taken  from  People's  Telephone  &  Telegraph  Co.  v.  East  Tennessee 
Telephone  Co.,  103  Fed.  212. 

No.  469. 

Bill  to  Enjoin  the  Transfer  of  Title  to  Patents  Under  a 
Partnership  Agreement.  (1) 

To  the  Honorable  Judge  of  the  District  Court  of  the  United 
States  for  the District  of , Division : 

R.   C,  of  the  city  of  ,  and  a  citizen  of  the  state  of 

-,  brings  this  his  bill  against  B.  E.,  of  ,  and  J.  E. 


of ,  both  citizens  of  the  state  of ,  and  inhabitants  of 

the  division  of  the  district  thereof,  and  says: 

First.  That  for  many  years  prior  to  March  1,  1897.  he 
was  a  member  of  the  partnership  of  J.  W.  &  Son,  manufac- 
turers of  clay-working  machinery  at  ;  that  on  or  about 

said  date,  by  transfer  from  the  other  members  of  said  firm, 
he  became  the  sole  owner  of  the  assets  and  property  belong- 
ing thereto,  including  the  demand  herein  sued  upon,  as  well 
as  all  other  rights,  claims  and  demands  of  every  nature  what- 
soever, both  in  law  and  in  equity,  belonging  to  said  partner- 
ship. 


BILLS    IN    SPECIAL    CASES.  699 

Second.     That  the  defendant,  B.  E.,  for  about  three  years 

prior  to  ,  was  in  the  employ  of  said  firm  as  a  traveling 

salesman;  that  in  September  of  said  year  said  firm,  being  then 
the  owner  of  a  shop  right  under  letters  patent  of  the  United 

States,  numbered  ,  issued  to  D.  B.  on  the  day  of 

,  for  an  improvement  in  automatic  brick-cutting  ma- 
chinery, and  being  desirous  of  purchasing  the  entire  interest 
in  said  patent,  and  reposing  great  confidence  in  the  integrity 
and  fidelity  of  said  defendant,  B.  E.,  requested  and  directed 
him  while  so  in  its  employ  to  go  to  Dixon,  Illinois,  at  its  ex- 
pense and  as  its  agent  to  see  said  inventor,  who  was  then  the 
owner  of  said  patent,  and  if  possible  obtain  from  him  an 
option  for  the  purchase  thereof. 

Third.  That  said  defendant,  while  so  acting  as  the  agent 
and  representative  of  said  partnership,  and  in  compliance  with 
said  instructions,  did  go  to  see  said  inventor,  and  did  obtain 
from  him  a  written  option  whereby  he  agreed  to  transfer  said 
patent  to  said  B.  E.  at  any  time  before  May,  ,  on  pay- 
ment of  the  sum  of  $ ,  and  to  issue  at  any  time  prior  to 

said  date  licenses  to  manufacture  under  said  patent,  at  one 
point  only,  on  payment  of  the  sum  of  $ for  each  license. 

Fourth.  That  some  time  in  the  month  of  November,  while 
still  in  the  employ  of  said  partnership,  said  defendant  notified 
plaintiff  that  he  had  obtained  said  option,  and  was  then 
directed  and  instructed  to  accept  the  terms  of  said  option  and 
to  cause  said  patent  to  be  assigned  to  him  as  soon  as  possible, 
taking  title  thereto  in  his  own  name,  and  thereupon  to  trans- 
fer and  assign  said  patent  to  said  partnership:  that  said  de- 
fendant, intending  to  defraud  said  partnership,  and  to  deprive 
it  of  the  benefit  of  the  ownership  of  said  patent,  did  not  for- 
mally accept  the  terms  of  said  option  and  procure  a  transfer 
of  said  letters  patent  as  so  directed,  but  left  the  employ  of 

said  partnership  on  the  first  day  of  December,  ,  without 

having  accepted  said  option  or  caused  said  letters  patent  to  be 
so  assigned,  all  of  which  was  done,  as  plaintiff  alleges,  with 
the  intent  and  purpose  of  cheating  and  defrauding  said  part- 
nership out  of  the  rights  designed  and  intended  to  be  secured 


700  SUITS    IN    EQUITY. 

to  it  by  said  option,  and  of  appropriating  said  letters  patent 
and  the  rights  thereby  conferred  to  his  own  use  and  advan- 
tage; that  shortly  after  leaving  the  employ  of  said  partner- 
ship, and  some  time  in  December,  ,  as  plaintiff  is  in- 
formed and  believes,  and  therefore  alleges,  with  the  like  in- 
tent and  purpose  of  cheating  and  defrauding  said  partnership, 
and  doing  its  business  a  great  and  irreparable  injury,  said 
defendant  without  any  authority  from  said  firm  sold  a  shop 

right  under  said  patent  to  C.  W.,  of  ,  a  competitor  of 

plaintiff  in  said  business,  for  the  sum  of  $ ;  that  he  con- 
cealed all  knowledge  of  said  sale  from  said  partnership,  and 
fraudulently  and  unlawfully  appropriated  the  money  arising 
therefrom  to  his  own  use;  and  plaintiff  says  that  the  interest 
so  granted  by  said  defendant  in  said  patent  was  of  the  value 

of  $ ,  for  which  amount  he  claims  said  defendant  is  justly 

indebted  to  him. 

Fifth.  That  said  defendant  thereafter,  and  some  time  in 
March,  ,  with  the  like  intent  and  purpose,  formally  ac- 
cepted the  terms  of  said  option  and  fraudulently  procured  said 
patent  to  be  transferred  and  assigned  to  himself,  paying 
therefor  the  price  fixed  by  the  terms  of  said  option,  to-wit, 
the  sum  of  $ ,  which  option  and  assignment  said  defend- 
ant caused  to  be  recorded  as  and  when  given,  respectively,  in 
the  patent  office  at  Washington. 

Sixth.  That  at  and  prior  to  the  time  of  accepting  the  terms 
of  said  option,  the  defendant,  B.  E.,  procured  the  said  D.  B. 
to  execute  and  deliver  to  him  an  assignment  of  a  shop  right, 
or  a  license  to  manufacture  under  said  patent,  leaving  the 
name  of  the  grantee  and  the  place  at  which  said  license  was 
to  be  granted  blank ;  that  said  defendant  has  said  assignment 
now  in  his  possession  or  under  his  control,  and  threatens  to, 
and  unless  restrained  by  this  honorable  court  will,  complete 
the  execution  of  such  assignment  by  filling  in  said  blanks,  and 
dispose  of  the  same  to  some  party  ignorant  of  the  rightful 
interests  of  plaintiff  therein. 

Se^fenth.  That  said  defendant  has  executed,  but  still  has 
subject  to   his  control,  five   additional  assignments   of  shop 


BILLS   OF   SPECIAL   CASES.  701 

rights  under  said  patent,  which  he  maliciously  threatens  to 
issue  and  deliver  to  competitors  of  plaintiff  in  the  business  of 
building  clay-working  machinery,  for  the  sole  purf)Ose  of  de- 
stroying the  value  of  such  patent  to  plaintiff  and  of  doing 
him  a  great  and  irreparable  injury;  that  plaintiff  believes  that 
said  defendant  will  issue  and  deliver  said  assignments  and 
transfers,  and  cause  the  same  to  be  recorded  in  the  patent 
office  at  Washington,  unless  enjoined  from  so  doing  by  this 
honorable  court.  Plaintiff  says  that  he  has  good  reason  to 
believe,  and  does  believe,  and  for  that  reason  alleges,  that 
such  executed  assignments  have  been  delivered  by  the  said 
B.  E,  to  the  defendant,  J.  E.,  with  instructions  to  deliver  and 
cause  the  same  to  be  recorded  if  any  action  is  brought  to 
recover  the  title  to  said  patent. 

Eighth.  That  with  the  intent  and  design  to  further  cheat 
and  defraud  plaintiff  and  said  partnership,  said  defendant, 
B.   E.,   fraudulently  and  without  consideration  assigned  and 

transferred  to  his  brother,  J.  E.,  of ,  on  or  about  , 

a  license  to  manufacture  at  any  places,  and  sell  throughout 
the  United  States,  said  invention  under  said  patent,  said  J.  E. 
then  having  full  knowledge  of  the  rights  of  said  partnership 
and  of  plaintiff  in  said  patent,  and  of  the  fraudulent  manner 
in  which  said  defendant,  B.  *E.,  had  acquired  his  interest 
therein. 

Ninth.  Plaintiff  further  avers  the  fact  to  be  that  the  said 
J.  E.,  with  such  knowledge  of  the  rights  of  plaintiff,  is  con- 
federating and  conspiring  with  the  said  B.  E.  to  assist  him  in 
so  cheating  and  defrauding  plaintiff  of  his  lawful  interest  in 
said  patent,  and  to  that  end  is  holding  said  assignments  and 
transfers  of  rights  therein  for  the  sole  purpose  of  making  de- 
livery of  the  same  immediately  upon  the  bringing  of  proceed- 
ings by  plaintiff  to  enforce  his  rights  thereto  so  that  such 
proceedings  may  be  rendered  ineffectual. 

Tenth.  That  the  said  defendant,  B.  E.,  in  direct  disregard 
of  his  duty  and  obligations  to  plaintiff,  has  refused  to  assign 
said  patent  to  him,  although  often  requested  so  to  do,  to  his 


702  SUTIS    IN-    EQUITY. 

great  and  irreparable  damage  and  injury,  for  which  injury  he 
says  he  has  no  adequate  remedy  at  law.  And  plaintiff  says 
that  he  can  not  safely  give  notice  to  said  defendants  or  either 
of  them  of  his  purpose  to  apply  for  an  order  of  injunction  as 
herein  prayed  for,  for  the  reason  that  said  defendants  would 
immediately  and  before  such  order  could  be  issued  deliver 
said  assignments  and  dispose  of  their  interests  in  said  patent, 
thereby  defeating  the  objects  and  purposes  of  said  injunction. 
Wherefore  plaintiff  prays  the  court  now  to  grant  him  a 
writ  of  injunction  restraining  and  enjoining  the  said  defend- 
ants, and  each  of  them,  from  in  any  manner  disfKDsing  of  said 
patent  or  any  interest  therein;  from  selling,  giving,  deliver- 
ing, assigning  or  transferring  any  license,  shop  rights  or 
other  interest  therein  to  any  person  or  company,  and  from 
delivering  or  causing  to  be  delivered  any  executed  assign- 
ments, transfers,  licenses  or  shop  rights  under  said  patent 
until  the  further  order  and  decree  of  this  court  in  the  prem- 
ises, and  upon  final  hearing  that  said  injunction  may  be  made 
perpetual;  that  the  defendant,  B.  E.,  be  decreed  to  hold  the 
title  to  said  patent  as  trustee  for  plaintiff  and  be  compelled  to 
disclose  what  sum  he  paid  therefor,  and  what  sums,  if  any, 
he  has  received  from  the  sale  of  interests  therein;  that  an 
account  may  be  taken  of  the  value  of  the  interests  in  said 
patent  so  disposed  of  by  said  defendant  and  a  decree  ren- 
dered in  favor  of  plaintiff  therefor;  that  upon  final  hearing 
hereof  he  may  be  decreed  to  assign  said  patent  to  plaintiff, 
and  deliver  to  the  clerk  of  this  court  for  cancellation  all 
assignments  of  any  interests  in  said  patent  whether  executed 
by  himself  or  by  the  said  D.  B.,  which  he  now  holds  or  over 
which  he  has  any  control;  that  the  defendant,  J.  E.,  be  de- 
creed to  hold  all  title  and  interest  transferred  to  him  in  said 
patent,  and  all  executed  assignments  of  any  interest  in  said 
patent,  or  rights  thereunder,  as  trustee  for  plaintiff,  and  upon 
final  hearing  be  ordered  to  assign  any  interests  he  may  have 
in  said  patent  to  plaintiff,  and  to  deliver  such  executed  assign- 
ments to  the  clerk  of  this  court  for  cancellation,  and  for  such 


BILLS    OF    SPECIAL    CASES.  703 

other  and  further  relief  as  the  nature  of  the  case  may  require 
and  to  your  honors  may  seem  meet.  R.  C. 

[Verification. '\ 

(1)  Taken  from  Penfield  v.  La  Dow,  40  C.  C.  A.  684,  100  Fed.  1002. 


No.  470. 

Bill  to  Enjoin  Railroads  from  Refusing  to  Receive  Freight 
from  Connecting  Lines. 

To  the  Judge  of  the  District  Court  of  the  United  States  for 
the  Northern  District  of  Ohio,  Western  Division : 

The  Toledo,  Ann  Arbor  &  North  Michigan  Railway  Com- 
pany, a  corporation  of  the  state  of  Michigan,  duly  incor- 
porated and  organized  under  the  laws  of  the  said  state,  and 
a  citizen  of  said  state,  brings  this  its  bill  against  the  Penn- 
sylvania Company,  a  corporation  of  the  state  of  Pennsyl- 
vania, duly  incorporated  under  the  laws  of  said  state,  and  a 
citizen  of  Pennsylvania,  and  the  Wheeling  &  Lake  Erie  Rail- 
way Company,  a  corporation  duly  organized  under  the  laws 
of  the  state  of  Ohio,  and  a  citizen  of  the  said  state  of  Ohio ; 
Albert  G.  Blair,  Jacob  S.  Morris,  the  Lake  Shore  &  Michigan 
Southern  Railway  Company,  the  Michigan  Central  Railroad 
Company,  the  Cincinnati,  Hamilton  &  Dayton  Railroad  Com- 
pany, the  Columbus,  Hocking  Valley  &  Toledo  Railway  Com- 
pany, the  Toledo  &  Ohio  Central  Railway  Company,  the  Cin- 
cinnati, Jackson  &  Mackinaw  Railway  Company.  All  of  said 
six  last-named  defendants  being  corporations  created  and  or- 
ganized under  the  laws  of  the  state  of  Ohio,  and. citizens  of 
said  state  of  Ohio. 

Plaintiff  says  that  it  is  now  the  owner  and  operates  a  line 
of  railroad  extending  from  the  city  of  Toledo,  in  the  county 
of  Lucas  and  state  of  Ohio,  northerly  and  northwesterly 
through  the  said  state  of  Michigan  to  a  terminus  at  or  near 
the  village  of  Frankfort,  in  Benzie  county,  said  state  of  Mich- 
igan ;  that  said  line  of  railroad  is  about  three  hundred  miles 
long. 


704  SUTIS    IN    EQUITY. 

Plaintiff  also  owns  and  operates  a  line  of  steam  ferry- 
boats for  the  transportation  of  cars  and  trains  from  said 
village  of  Frankfort  across  Lake  Michigan  to  the  town  of 
Kewaunee,  in  the  state  of  Wisconsin,  and  that  it  is  a  common 
carrier  of  freight  and  passengers  under  the  statutes  of  the 
United  States  of  America  and  the  states  of  Ohio  and  Michi- 
gan, aforesaid. 

A  large  part  of  plaintiff's  business  consists  of  the  trans- 
portation of  cars  of  freight  from  points  in  the  state  of  Michi- 
gan and  other  states  west  of  Michigan  into  the  state  of  Ohio, 
and  also  the  transportation  of  cars  and  freight  consigned 
from  the  states  of  Minnesota,  Wisconsin  and  Michigan  to 
points  in  the  state  of  Ohio  and  other  states  east  thereof,  and 
as  such  common  carrier  as  aforesaid  it  is  engaged  in  a  large 
amount  of  interstate  commerce  and  traffic,  which  is  regu- 
lated and  controlled  by  the  provisions  of  the  acts  of  Congress 
in  such  case  made  and  provided. 

Said  defendants,  the  Wheeling  &  Lake  Erie  Railway  Com- 
pany and  the  Pennsylvania  Company,  are  likewise  common 
carriers  of  freight  and  passengers,  and  as  such  the  said  de- 
fendant, the  Wheeling  &  Lake  Erie  Railway  Company,  owns 
and  operates  a  line  of  railroad  extending  from  the  city  of 
Toledo  aforesaid  southeasterly  through  the  state  of  Ohio  to 
the  city  of  Wheeling  in  the  state  of  West  Virginia,  and  con- 
trols and  operates  a  line  of  railroad  in  Lucas  county,  Ohio, 
known  as  the  Belt  Railway,  connecting  plaintiff's  road  with 
the  roads  of  the  other  defendant  companies,  all  of  whom  own 
and  operate  lines  of  railroad  extending  easterly  and  southerly 
from  said  city  of  Toledo  respectively,  and  that  the  said  de- 
fendant, the  Pennsylvania  Company,  owns  and  operates  a  line 
of  railroad  extending  from  said  city  of  Toledo  southeasterly 
through  said  state  of  Ohio  to  the  city  of  Pittsburg  in  the 
state  of  Pennsylvania.  All  said  defendant  companies'  lines 
of  railroad  connect  with  the  line  of  plaintiff  at  a  common 
grade  in  the  county  of  Lucas  and  state  of  Ohio,  convenient 
for  the  interchange  of  cars  of  freight. 


BILLS    OF   SPECIAL    CASES.  705 

That  a  very  large  and  important  part  of  the  business  of 
plaintiff  consists  in  the  interchange  of  said  cars  of  freight 
between  plaintiff  and  said  defendant  companies. 

That  substantially  all  the  business  transacted  as  aforesaid 
between  plaintiff  and  said  defendant  companies  consists  of 
the  interchange  of  cars  containing  freight  consigned  from 
points  in  one  state  to  points  in  another  state,  and  said  busi- 
ness is  therefore  subject  to  all  and  singular  the  provisions  of 
the  acts  of  Congress  of  February  4,  1887,  regulating  com- 
merce between  the  states,  and  the  amendments  thereto. 

Plaintiff  further  says  that  all  of  said  business  of  inter- 
change of  cars  of  freight  as  aforesaid  between  plaintiff  and 
said  defendant  companies  is  transacted  within  said  county  of 
Lucas  and  state  of  Ohio,  within  the  jurisdiction  of  this  court. 

That  by  the  provisions  of  the  act  of  Congress  aforesaid, 
it  is  the  duty  of  said  defendant  companies,  according  to  their 
respective  powers,  to  afford  all  reasonable,  proper  and  equal 
facilities  for  the  interchange  of  traffic  with  plaintiff,  and  to 
receive,  forward  and  deliver  cars  of  freight  in  the  ordinary 
transaction  of  the  business  aforesaid  from  and  to  plaintiff 
without  any  discrimination. 

That  it  is  the  duty  of  said  defendant  companies,  under  the 
statutes  of  the  state  of  Ohio,  to  receive  from  plaintiff  the  cars 
of  freight  delivered  to  them  in  the  ordinary  transactions  of  the 
business  aforesaid  without  any  unnecessary  delay,  and  to  trans- 
port the  same  to  their  destination  over  their  respective  roads, 
and  in  like  manner  to  deliver  to  plaintiff  all  cars  of  freight 
billed  over  plaintiff's  road  to  be  by  plaintiff  transported  to  their 
destination. 

That  the  said  defendant  companies  and  their  ofificials, 
agents  and  employes  have  since  the  11th  day  of  March,  1893, 
given  out  and  threatened  that  they  will  refuse  to  receive  from 
plaintiff  cars  offered  or  to  be  offered  by  plaintiff,  and  that 
they  will  not  deliver  to  plaintiff  cars  billed  over  plaintiff's 
road  for  transportation  by  plaintiff  to  their  destination,  for 
the  reason,  as  plaintiff  is  informed  and  believes  and  charges 
the  fact  to  be,  that  because  plaintiff  has  employed  as  locomo- 


706  SUTIS    IN    EQUITY, 

tive  engineers  in  its  service  men  who  are  not  members  of  the 
Brotherhood  of  Locomotive  Engineers,  which  plaintiff  is  in- 
formed is  an  irresponsible  voluntary  association  of  locomotive 
engineers,  the  locomotive  engineers  in  the  employ  of  the  de- 
fendant companies  have  refused  to  handle  cars  to  be  inter- 
changed with  plaintiff's  railroad.  But  plaintiff  says  that  it  is 
informed  and  believes  that  the  defendants  continue  to  afford  to 
other  railroads  the  full  and  free  facilities  for  interchange  of 
traffic  as  aforesaid,  while  refusing  to  transact  such  business 
with  plaintiff,  thereby  discriminating  illegally  against  plaintiff. 

Plaintiff  alleges  the  fact  to  be  that  no  legal  or  reasonable 
ground  exists  why  said  defendant  companies  should  refuse 
to  transact  the  business  of  interchanging  cars  of  freight  as 
aforesaid,  and  that  no  excuse  is  alleged  so  far  as  plaintiff  is 
advised  for  such  refusal,  other  than  the  one  hereinbefore  set 
forth. 

That  if  said  defendant  companies  shall  persist  in  their  re- 
fusal to  handle  such  interchange  business  as  aforesaid,  a  very 
large  and  important  part  of  plaintiff's  business  will  come  to 
a  complete  standstill.  The  transaction  of  said  interstate  com- 
merce will  be  paralyzed,  and  the  loss  and  injury  to  plaintiff 
and  to  the  public  will  be  irreparable  and  continuing. 

The  defendant,  Albert  G.  Blair,  is  the  general  manager  of 
said  defendant,  the  Wheeling  &  Lake  Erie  Railway  Com- 
pany, and  as  such  has  general  charge  and  control  of  all  its 
business  operations ;  and  the  defendant,  Jacob  S.  Morris,  is 
the  superintendent  of  the  defendant,  tlie  Pennsylvania  Com- 
pany, and  as  such  has  general  charge  and  control  of  the  busi- 
ness operations  of  said  company  in  Lucas  county,  Ohio. 

Thaf  unless  the  said  defendants  are  restrained  by  the  order 
of  this  court  from  refusing  to  perform  their  public  duty  as 
aforesaid,  plaintiff  will  be  unable  to  perform  its  public  duty 
in  the  transportation  of  the  cars  between  the  state  of  Ohio 
and  the  state  of  Michigan;  that  the  interests  of  the  public 
will  suffer  by  reason  of  the  accumulation  of  cars  on  the  line 
of  plaintiff's  road  and  connecting  roads  and  inability  of  plain- 
tiff to  carry  or  deliver  them;  that  from  the  nature  of  the 


BILLS   OF   SPECIAL   CASES.  707 

case  the  damages  suffered  by  plaintiff  would  be  difficult  and 
impossible  to  estimate,  and  that  plaintiff  has  no  adequate 
remedy  at  law  in  the  premises. 

That  the  matter  in  dispute  herein  exceeds,  exclusive  of 
interests  and  costs,  the  sum  of  $3,000,  and  that  this  suit 
arises  under  the  constitution  and  laws  of  the  United  States. 

Wherefore  plaintiff  prays  that  your  honors  may  grant  a 
writ  of  injunction  issued  out  of  and  under  the  seal  of  this 
honorable  court  perpetually  enjoining  and  restraining  the  said 
defendant  companies,  their  officers,  agents,  servants  and  em- 
ployes from  refusing  to  offer  all  reasonable  and  proper  and 
equal  facilities  to  the  interchange  of  traffic  with  plaintiff,  and 
from  refusing  to  receive  from  plaintiff,  for  transportation 
over  their  respective  lines  of  railroad  any  and  all  cars  of 
freight  which  may  be  tendered  to  them  by  plaintiff,  and  from 
refusing  to  deliver  to  plaintiff  all  cars  of  freight  which  may 
be  billed  over  plaintiff's  line  of  railroad  from  said  defendant 
companies  in  like  manner  as  heretofore;  and  restraining  said 
individual  defendants  and  each  of  them  while  remaining  in 
the  service  and  employment  of  said  respective  companies 
from  refusing  to  perform  the  usual  services  required  in  their 
respective  capacities  for  the  interchange  of  cars  and  freight 
between  plaintiff  and  said  defendant  in  the  same  manner  in 
which  the  same  has  been  heretofore  carried  on,  and  for  such 
other  relief  as  to  the  court  shall  seem  equitable  and  proper 
in  the  premises. 

Plaintiff  prays  that  a  provisional  or  preliminary  restrain- 
ing order  be  issued  to  the  same  purport  and  effect  as  herein 
prayed  for  against  said  respective  defendants  to  remain  in 
full  force  until  the  further  order  of  the  court  herein  or  until 
this  suit  shall  be  finally  disposed  of.  R.  X., 

Solicitor  for  Complainant. 

[Verification.] 

(1)  This  bill  was  filed  in  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  R.  Cb., 
54  Fed.  730. 


708  SUTIS    IN    EQUITY. 

No.  471. 

Where  Carrier  Refuses  to  Accept  Goods  in  Interstate 
Commerce. 

[Caption.] 

Plaintiffs,  doing  business  as  a  partnership,  and  all  citizens 
of  the  state  of  Missouri,  with  offices  located  at  Kansas  City, 
in  Jackson  county,  Missouri,  bring  this  their  bill  against 
Missouri,  Kansas  &  Texas  Railway  Company,  a  corporation 
and  a  citizen  of  Kansas  and  of  the  third  division  of  the 
district  of  Kansas. 

Plaintiffs  state  that  this  proceeding  is  between  citizens  of 
different  states;  that  the  amount  involved  exceeds  the  sum  of 
three  thousand  ($3,000)  dollars,  exclusive  of  interest  and 
costs,  and  that  this  is  a  proceeding  arising  under  a  federal 
law  regulating  commerce. 

Plaintiffs  for  their  cause  of  action  against  defendant  state 
that  they  are  a  co-partnership  consisting  of  Dan  Danciger, 
'A.  Danciger,  Jack  Danciger,  Joseph  Danciger  and  M.  O. 
Danciger,  and  they  do  [business]  under  the  following  trade 
names:  Danciger  Bros.,  Harvest  King  Distilling  Company, 
and  Schiller  Bros.  Distilling  Company;  that  they  are  engaged 
in  the  sale  of  beer,  whiskey  and  other  beverages,  intoxicating 
and  non-intoxicating,  at  Kansas  City,  Missouri,  and  have 
complied  with  all  the  laws  of  the  United  States  and  the  state 
of  Missouri,  and  all  the  rules  and  regulations  promulgated 
thereunder  affecting  and  relating  to  such  sales. 

That  defendant,  Missouri,  Kansas  &  Texas  Railway  Com- 
pany, is  a  corporation  organized  under  and  existing  by  virtue 
of' the  laws  of  the  state  of  Kansas,  and  is  a  citizen  of  Kansas, 
and  of  the  third  division  of  the  district  of  Kansas,  and  is  in 
possession  of  and  operates  a  line  of  railroad  from  Kansas 
City,  Missouri,  at  which  place  it  maintains  an  office  and 
depot,  to  and  through  and  for  various  points  in  Osage  county, 
in  the  state  of  Oklahoma,  at  which  points  it  maintains  offices 
and  depots,  one  of  which  points  is  Nelagoney,  Osage  county, 
Oklahoma,  and  one  of  which  is  Hominy,  Osage  county,  Okla- 


BILLS   OF   SPECIAL   CASES.  709 

homa;  that  defendant  is  engaged  in  the  business  of  trans- 
porting, hauling  and  conveying  goods,  wares  and  merchan- 
dise over  its  aforesaid  line  for  hire,  and  is  a  common  carrier; 
that  the  Midland  Valley  Railroad  Company  is  a  corporation 
and  is  in  possession  of  and  operates  a  line  of  railroad  running 
through  Osage  county,  Oklahoma,  and  maintains  offices  and 
depots  at  and  for  various  points  therein,  to-wit,  Osage  City, 
Pawjuska,  Foraker,  Wynona,  Avant,  Big  Heart,  Prue,  and 
said  line  of  railroad  passes  through  Nelagoney,  Oklahoma, 
and  other  points  in  Osage  county,  Oklahoma,  and  at  and 
for  which  points  the  Midland  Valley  Railroad  Company 
maintains  offices  and  depots;  that  last-named  railroad  com- 
pany is  engaged  in  the  business  of  transporting,  forwarding, 
hauling  and  conveying  goods,  wares  and  merchandise  over 
said  line  of  railroad  for  hire,  and  is  a  common  carrier. 

Plaintiffs  state  that  defendant  does  now  and  has  for  a  long 
time  accepted  for  carriage  goods,  wares  and  merchandise  and 
articles  of  interstate  commerce  consigned  to  various  parties 
in  Osage  county,  Oklahoma,  and  to  Avant  and  towns  hereto- 
fore named  in  Osage  county,  Oklahoma,  billed  and  addressed 
as  follows : 

(Name  of  consignee),  Missouri,  Kansas  &  Texas 

Railway  Company  via  Midland  Valley  Railroad  Company, 

(Name  of  town),  Oklahoma. 

" ,  Missouri,  Kansas  &  Texas 

Railway  Company,  (Name  of  town),  Oklahoma." 

That  said  defendant  does  now  and  has  for  a  long  time 
transported,  hauled,  conveyed  and  forwarded  such  merchan- 
dise and  articles  of  interstate  commerce  either  to  destination, 
if  upon  its  own  line,  or  to  aforementioned  Midland  Valley 
Railroad  Company  at  Nelagoney,  Oklahoma,  if  destination 
was  on  lj»tter  company's  line,  and  defendant  has  always 
offered  reasonable,  proper  and  equal  facilities  for  the  inter- 
change and  transportation  of  such  traffic;  that  said  Midland 


/^lO  SUTIS    IN    EQUITY. 

Valley  Railroad  Company  does  now  and  has  for  a  long  trme 
accepted  for  carriage,  goods,  wares  and  merchandise  and  arti- 
cles of  interstate  commerce  billed  and  addressed,  conveyed 
and  forwarded  as  aforesaid,  and  does  now  and  has  for  a  long 
time  forwarded  same  to  points  on  its  line  in  Osage  county, 
Oklahoma,  and  to  Avant,  Osage  county,  Oklahoma,  if  Avant 
be  the  destination. 

Plaintiffs  state  that  defendant  is  a  party  to  and  has  issued 
and  publicly  distributed  and  has  sent  to  plaintiffs  a  printed 
circular  in  which  it  is  stated  in  effect  that  defendant,  its 
agents  and  employes  will  not  accept  for  carriage  shipments 
of  intoxicating  liquors  in  any  quantity  or  under  any  con- 
dition consigned  to  parties  and  points  in  Osage  county,  Okla- 
homa ;  that  defendant  has  refused  and  still  refuses  to  accept, 
shipments  from  plaintiffs  under  any  condition  of  intoxicating 
liquors  consigned  to  any  point  in  Osage  county,  Oklahoma, 
all  on  the  sole  ground  that  all  points  in  Osage  county  are 
"Indian  Country." 

Plaintiffs  state  that  defendant  has  failed  and  refused  and 
still  fails  and  refuses  to  receive,  accept,  convey,  haul,  trans- 
port or  forward  any  shipments  of  intoxicating  liquors  ad- 
dressed as  aforesaid  over  its  line  of  railroad  from  Kansas 
City,  Missouri,  to  any  point  in  Osage  county,  Oklahoma,  or 
to  Nelagoney  or  Hominy  or  other  towns  heretofore  named, 
in  violation  of  its  duty  as  a  common  carrier;  that  although 
defendant  refuses  to  accept  for  carriage  shipments  of  intoxi- 
cating liquor  under  any  condition  to  any  point  in  Osage 
county,  Oklahoma,  it  does  accept  for  carriage  shipments  of 
intoxicating  liquor  to  any  point  in  any  other  county  in  west- 
ern Oklahoma, 

Plaintiffs  state  that  prior  to  the  9th  day  of  June,  1914, 
they  received  through  the  mails  in  the  regular  course  of  their 
business  bona  fide  written  and  signed  orders  for  intoxicating 
liquors,  each  order  being  accompanied  by  the  proper  amount 
of  cash  in  payment  for  the  goods  ordered,  which  orders  were 
in  substances  as  follows: 


BILLS    OF   SPECIAL    CASES.  711 

Name.  Quantity,       Kind      Point  shipment  to  be  made  to. 


1-H.  C.  Hargis, 

1  cask 

Beer 

Pawhuska, 

Osage  County, 

Okla. 

2-Lee  Westbrook, 

1  cask 
1  gal. 

Beer 

Whiskey- 

Hominy, 

« 

3-G.  W.  Swift, 

1  cask 
1  gal. 

Beer 

Whiskey 

Big  Heart, 

u 

« 

« 

4--Fred    Peters, 

1  gal. 

Whiskey 

Avant, 

« 

" 

It 

&-Fred  Howard, 

1  cask 

Beer 

Nelagoney, 

(( 

« 

« 

6-Grant  Swank, 

1  cask 

Beer 

1  gal.  Whiskey  Wynona,  "  "  " 

7-J.  H.  Hieronyomes,     1  cask  Beer  Foraker,  "  "  " 

8-Y.  B.  Henegar,  1  cask  Beer  Osage  City,     " 

1  gal.  Whiskey 

9-M.  A.  Turner,  1  cask  Beer      '  Prue, 

That  each  of  said  orders  was  also  accompanied  by  an  affi- 
davit signed  and  sworn  to  by  the  parties  set  out  above  re- 
spectively, said  affidavit  being  substantially  as  follows : 

Affidavit. 

State  of  Oklahoma,  County  of  Osage,  ss. 

[name  of  consignee],  being  first  duly  sworn,  upon 

his  oath  states  that  he  is  a  man  of  pure  white  (or  negro) 
blood,  and  over  the  age  of  twenty-one  years;  that  the  ship- 
ments of  intoxicating  liquor  ordered  by  him  from  Danciger 
Bros,  on  the  day  of  ,  1914,  if  shipped  and  trans- 
ported by  the  railroad  company,  will  not  be  used  for  any 
unlawful  purpose,  and  that  said  liquor  is  intended  for  and 
will  be  used  by  affiant  for  his  own  personal  or  family  con- 
sumption; that  the  place  of  destination,  to-wit,  [name 

of  town],  Oklahoma,  of  said  shipment  is  not  "Indian  Coun- 
try" or  Indian  Territory,  but  that  the  original  Indian  title  of 
the  place  to  which  said  liquor  will  be  taken  has  been  extin- 
guished; that  this  affidavit  is  made  for  the  sole  purpose  of 
obtaining  said  shipment  of  liquor,  and  that  affiant  knows  that 
everything  stated  herein  is  true. 

(Signature.)     . 

Subscribed  and  sworn  to  before  me  a  notary  public  within 

and  for  the  county  and  state  aforesaid  this day  of , 

1914.  ,  Notary  Public. 


712  SUTIS   IN   EQUITY. 

Plaintiffs  state  that  all  of  aforesaid  orders  were  accepted 
by  them  at  Kansas  City,  Missouri,  and  that  on  the  9th  day 
of  June,  1914,  they  tendered  with  the  lawful  and  scheduled 
freight  charges  to  destination,  to  defendant  for  carriage  at 
Kansas  City,  Missouri,  nine  shipments  of  intoxicating  liquor 
billed  and  addressed  to  above-named  parties  respectively,  to 
above-named  points  respectively,  and  containing  the  quanti- 
ties set  out  above  respectively ;  that  shipments  to  those  points 
heretofore  alleged  to  be  on  the  line  of  the  Midland  Valley 
Railroad  Company  were  billed  Missouri,  Kansas  &  Texas 
Railway  Company  for  Midland  Valley  Railroad  Company, 
and  those  to  points  on  defendant's  line  were  billed  direct  on 
said  line  to  said  points ;  that  said  shipments  were,  each  and 
every  one,  marked,  labeled  and  branded  as  required  by  law, 
and  were  well  and  securely  packed,  and  were  sold  in  Kansas 
City,  Missouri,  where  the  sales  were  legal;  that  said  ship- 
ments were  for  the  personal  use  and  private  consumption  of 
aforenamed  parties  and  were  not  intended  to  be  received, 
possessed,  sold  or  used  in  violation  of  any  law  of  the  United 
States  or  of  the  state  of  Oklahoma;  that  the  shipments  were 
consigned  to  above-named  points,  and  the  original  Indian 
title  to  the  soil  of  same  had,  prior  to  the  time  of  shipment, 
been  extinguished,  and  that  said  points  were  not  Indian  coun- 
try; that  the  consignees  of  said  shipments  were  all  white 
men  over  twenty-one  years  of  age,  of  no  Indian  blood,  and 
laboring  under  no  legal  disabilities.  Plaintiffs  further  state 
that  defendant  refused  to  receive,  accept,  convey,  transport 
or  deliver  any  of  said  shipments,  all  on  account  of  the  ruling 
in  its  aforesaid  circular.  Plaintiffs  state  that  all  shipments  of 
liquor  tendered  to  defendant  for  transportation  to  Osage 
county,  Oklahoma,  would  and  will  fall  within  and  comply 
with  the  description  and  condition  set  out  in  this  paragraph 
as  applicable  to  other  shipments  tendered,  and  would  comply 
with  all  lawful  and  reasonable  conditions  imposed  by  defend- 
ants on  such  shipments. 

That  Osage  county,  Oklahoma,  is  not  within  the  boun- 
daries   of    Indian    Territory,    nor    are    the    pomts    in    Osage 


BILLS    OF    SPECIAL    CASES.  713 

county,  Oklahoma,  to  which  shipments  of  intoxicating  liquor 
were  tendered  for  carriage,  as  aforestated,  and  to  which  ship- 
ments of  intoxicating  liquor  will  be  tendered  for  carriage, 
and  to  which  plaintiffs  sought  and  seek  in  this  action  to  ship, 
Indian  country,  within  the  purview  or  meaning  of  any  law  of 
the  United  States  prohibiting  or  relating  to  the  introduction 
of  intoxicating  liquor  into  Indian  country,  but  that  such 
points  and  each  of  them  in  Osage  county,  Oklahoma,  are 
places  the  original  Indian  title  to  the  soil  of  which  has  been 
completely  extinguished.  That  the  receipt,  acceptance,  trans- 
portation, hauling,  conveying  or  forwarding  of  such  ship- 
ments of  intoxicating  liquor  to  said  points  in  Osage  county, 
Oklahoma,  to  which  plaintiffs  sought  to  make  shipment  and 
will  seek  to  make  shipment,  would  not  have  been,  is  not  now, 
and  will  not  be,  so  far  as  existent  laws  are  concerned,  in  vio- 
lation of  any  law  of  the  United  States  or  of  the  constitution, 
enabling  act  or  any  law  of  Oklahoma. 

Plaintiffs  further  state  that  the  depot  and  station  of  the 
Midland  Valley  Railroad  Company  and  the  Missouri,  Kansas 
&  Texas  Railway  Company  at  Nelagoney,  Oklahoma,  and 
the  depot  and  station  of  the  Missouri,  Kansas  &  Texas  Rail- 
way Company  at  Prue,  Oklahoma,  are  not  located  within  the 
limits  and  boundaries  of  said  towns,  but  that  they  believe 
that  the  lines  of  railroads  and  the-  depots  of  above  said  com- 
panies, even  though  located  without  the  city  limits,  are  no 
longer  Indian  country,  owing  to  an  act  of  Congress  com- 
monly known  as  the  Osage  allotment  act,  relative  to  said 
railroad  rights  of  way,  and  that  even  though  said  railroad 
rights  of  way  and  stations  might  be  held  to  be  Indian  coun- 
try, still  said  shipments  aforenamed,  being  for  lawful  use,  the 
delivery  of  same  to  consignees  would  not  be  unlawful. 

Plaintiffs  state  that  they  have  built  up  and  established  a 
large  mail-order  liquor  business,  and  that  they  receive  and 
have  received  numerous  orders  through  the  mails  from  west- 
ern Oklahoma,  and  have  a  great  number  of  customers  in 
western  Oklahoma,  and  also  have  a  great  number  of  custom- 
ers in  Osage  county,  Oklahoma,  and  formerly  received  and 


714  SUTIS    IN    EQUITY. 

filled  a  great  number  of  mail  orders  for  Osage  county,  Okla- 
homa, and  would  now  and  in  the  future  have  a  great  number 
of  customers  in  Osage  county,  Oklahoma,  and  would  receive 
many  orders  from  said  county  but  for  the  defendant's  wrong- 
ful refusal  to  accept  shipments  of  intoxicating  liquor  for  car- 
riage to  customers  or  parties  in  Osage  county,  Oklahoma. 

Plaintiffs  state  that  they  have  refused  and  have  been  un- 
able to  fill  many  bojta  fide  cash  orders  received  from  points 
in  Osage  county  on  account  of  defendant's  wrongful  refusal  to 
perform  services  as  aforesaid. 

Plaintiffs  state  that  in  order  to  prevent  any  shipmertts  of 
intoxicating  liquor  consigned  to  points  in  the  Osage  county, 
Oklahoma,  from  being  delivered  to  Osage  Indians,  they  re- 
quire, with  each  order,  an  affidavit  in  form  the  same  as  those 
previously  mentioned  herein,  signed  by  the  consignee;  that 
they  also  ascertain  whether  said  consignee  is  enrolled  as  an 
Osage  Indian,  and  if  so  they  refuse  to  ship  his  order;  that  in 
order  to  prevent  the  use  of  fictitious  names,  their  regular  cus- 
tom is  and  will  be  ir  regard  to  orders  received  from  Osage 
county  to  send  the  original  bills  of  lading  for  each  shipment 
by  freight  of  intoxicants  to  points  in  Osage  county  by  regis- 
tered mail  in  an  envelope  addressed  to  the  consignee,  with 
instructions  to  the  post-office  department  to  deliver  said  regis- 
tered mail  and  letter  only  to  the  party  to  whom  it  is  ad- 
dressed, and  plaintiffs  also  instruct  and  will  instruct  the  rail- 
road company  not  to  deliver  such  shipments  except  upon 
presentation  of  the  original  bill  of  lading  [therefor]. 

Plaintiffs  state  that  the  failure  and  refusal  of  defendant 
railway  company  to  accept,  receive,  transport,  convey,  haul 
or  forward  such  shipments  of  intoxicating  liquor  is  a  failure 
of  the  defendant  to  perform  its  common-law  duties  as  a  com- 
mon carrier,  and  is  an  unlawful  failure  and  refusal  on  the 
part  of  defendant  to  afford  reasonable,  proper  and  equal 
facilities-  for  the  interchange  of  traffic.  Plaintiffs  state  that 
the  continuous  failure  and  refusal  of  said  defendant  to  accept 
such  shipments  and  transport  and  forward  same  has  resulted, 
is  now  resulting  and  will  result  in  enormous  damage  to  plain- 


BILLS    OF    SPECIAL    CASES.  7l5 

tiffs,  and  is  destroying  a  substantial  portion  of  plaintiff's 
business  and  is  preventing  plaintiffs  from  doing  a  great  vol- 
ume of  business. 

Plaintiffs  further  state  that  the  damage  sustained  by  them 
by  reason  of  the  continuous  wrongful  refusal  of  defendants 
to  accept  shipments  mentioned  aforesaid  is  not  and  will  not 
be  susceptible  of  exact  or  even  approximate  ascertainment, 
so  that  an  action  at  law  could  be  prosecuted  to  redress  the 
injury  to  plaintiffs.  Plaintiffs  further  state  that  redress  at- 
tempted at  law  would  result  in  a  multiplicity  of  suits  and 
vexatious,  expensive  and  endless  litigation.  Plaintiffs  fur- 
ther state  that  they  have  a  clear  right  to  have  such  shipments 
to  points  in  Osage  county,  no  longer  Indian  country,  trans- 
ported, and  a  hardship  is  being  worked  up>on  them  by  de- 
fendant for  which  the  only  relief  can  come  from  this  court  of 
equity  and  for  which  there  is  no  plain,  adequate  and  com- 
plete remedy  at  law. 

Wherefore  plaintiffs  pray  that  your  honor  may  grant  a 
writ  of  injunction  issued  out  of  and  under  the  seal  of  this 
honorable  court,  perpetually  enjoining  and  restraining  the 
said  defendant  company  and  its  officers,  agents,  servants  and 
employes  from  refusing  to  accept,  receive,  convey,  transport 
and  deliver  to  consignees,  if  on  its  line,  or  to  Midland  Valley 
Railroad  Company,  if  on  latter  company's  line,  shipments  of 
intoxicating  liquor  consigned  for  personal  use  to  persons  at 
Avant.  Prue,  Pawhuska,  Foraker,  Nelagoney,  Wynona,  Os- 
age City,  Hominy,  Big  Heart,  all  in  Osage  county,  Okla- 
homa, and  also  those  shipments  in  this  bill  described,  upon 
compliance  by  plaintiffs  with  defendants  reasonable  and  law- 
ful shipping  regulations  and  upon  prepayment  of  the  lawful 
and  scheduled  freight  charges,  and  upon  deposit  by  plaintiffs 
with  defendant  of  affidavits  of  consignee  of  each  shipment 
tendered  in  form  as  heretofore  provided,  and  under  such 
other  conditions  as  this  court  may  impose. 

Plaintiffs  further  pray  that  a  provisional  and  preliminary 
and  temporary  injunction  and  restraining  order  be  issued  to 
the  same  purport  and  effect  as  herein  prayed  for  a  perpetual 


716  SUTIS    IN    EQUITY. 

injunction,  to  remain  in  full  force  until  the  further  order  of 
the  court  herein  or  until  this  suit  may  be  finally  disposed  of. 

Plaintiffs  further  pray  for  their  costs  in  this  action  and  for 
such  other  and  further  relief  as  to  this  court  shall  appear 
equitable  and  just. 

Plaintiffs  further  pray  your  honor  to  grant  unto  them  a 
writ  of  subpoena  of  the  United  States  of  America,  issuing- 
out  of  and  under  the  seal  of  this  honorable  court,  directed  to 
the  said  Missouri,  Kansas  &  Texas  Railway  Company,  com- 
manding it  on  a  day  certain  therein  to  be  named  and  under 
certain  penalty  to  be  and  appear  before  this  honorable  court, 
then  and  there  to  answer  all  and  singular  the  premises  and 
to  stand  and  abide  by  such  direction  and  final  decree  as  may 
be  made  against  it  in  the  premises. 

I.    J.     RiNGOLSKY, 

Harry  L.  Jacobs, 
Solicitors  for  Plaintiffs. 


No.  472. 

Where  Railway  Refuses  to  Carry  Liquor  into  Dry  Territory. 

[Caption.] 

I.  The  plaintiff(l),  Theo.  Hamm  Brewing  Company,  is  a 
corporation  organized  and  existing  under  and  by  virtue  of  the 
laws  of  the  state  of  Minnesota,  and  has  its  principal  office 
and  place  of  business  in  the  city  of  St.  Paul,  Minnesota,  and 
is  a  citizen  and  resident  thereof.  The  plaintiff,  the  Minne- 
apolis Brewing  Company,  is  a  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  state  of  Min- 
nesota, and  has  its  principal  office  and  place  of  business  in 
the  city  of  Minneapolis,  state  of  Minnesota,  and  is  a  citizen 
and  resident  thereof.  The  plaintiff,  the  G.  Heileman  Brew- 
ing Company,  is  a  corporation  organized  and  existing  under 
and  by  virtue  of  the  laws  of  the  state  of  Wisconsin,  and  has 
its  principal  office  and  place  of  business  in  the  city  of  La 
Crosse,  Wisconsin,  and  is  a  citizen  and  resident  thereof.    The 


BILLS   OF   SPECIAL   CASES.  717 

plaintiff,  Rock  Island  Brewing  Company,  is  a  corporation  or- 
ganized and  existing  under  and  by  virtue  of  the  laws  of  the 
state  of  Illinois,  and  has  its  principal  office  and  place  of  busi- 
ness in  the  city  of  Rock  Island,  Illinois,  and  is  a  citizen  and 
resident  thereof.  These  plaintiffs  bring  this  their  bill  of  com- 
plaint against  the  Chicago,  Rock  Island  &  Pacific  Railway 
Company,  and  the  receivers  thereof,  which  is  a  corporation 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the 
state  of  Illinois,  and  is  a  resident  and  citizen  thereof,  and 
owns,  maintains  and  operates  a  line  of  railway  in  the  states 
of  Minnesota,  Illinois  and  Iowa,  and  has  an  office  and  a  prin- 
cipal place  of  business  at  Chicago,  Illinois ;  St.  Paul,  Minne- 
sota, and  Rock  Island,  Illinois ;  that  the  defendants,  Jacob  M. 
.Dickinson  and  Henry  U.  Mudge,  are  residents  and  citizens 
of  the  city  of  Chicago,  Illinois,  and  that  on  or  about  April  20, 
1915,  they  were,  by  the  honorable  district  court  of  the  United 
States  for  the  northern  district  of  Illinois,  duly  appointed 
receivers  of  all  and  singular  the  railroad  lines,  property,  as- 
sets, rights  and  franchises  of  the  Chicago,  Rock  Island  & 
Pacific  Railway  Company,  pursuant  to  which  order  the  said 
receivers  qualified  and  duly  took  possession  of  all  and  singu- 
lar the  said  railroads  and  all  its  said  property,  and  have  ever 
since  continued  to  be  and  are  now  the  duly  qualified  and  act- 
ing receivers  of  the  said  Chicago,  Rock  Island  &  Pacific 
Railway  Company,  and  have  ever  since  April  20,  1915,  and 
are  now  operating  the  said  line  of  railroads. 

This  is  a  suit  arising  under  the  laws  and  constitution  of 
the  United  States,  as  will  more  fully  appear  from  the  facts 
hereinafter  stated. 

II.  That  each  of  the  plaintiffs  is  now,  and  for  more  than 
five  years  last  past,  has  been  lawfully  engaged  in  the  busi- 
ness of  manufacturing  and  selling  beer  and  other  fermented 
malt  liquors  at  its  respective  principal  place  of  business  in  the 
state  of  its  incorporation,  and  in  addition  thereto  now  law- 
fully maintains  and  conducts  and  has  during  all  of  said  time 
lawfully  maintained  and  conducted  a  place  for  the  sale  of 
such  beer  and  other   fermented  malt  liquors  in   the  city  of 


718  SUTIS    IN    EQUITY. 

Rock  Island,  Illinois,  and  during  all  of  said  time  has  been 
and  still  is  duly  licensed  and  authorized  by  the  United  States 
to  manufacture  and  sell  beer  and  malt  liquors  as  aforesaid, 
and  has  paid  to  the  United  States  the  internal  revenue  tax 
required  by  law  and  has  in  all  respects  complied  with  the 
laws  of  the  United  States  and  the  laws  of  the  states  in  which 
it  does  business. 

III.  The  Chicago,  Rock  Island  &  Pacific  Railway  Company 
is  a  common  carrier  of  freight  and  passengers  for  hire  on 
lines  of  railway  which  it  owns,  maintains  and  operates  in 
Minnesota,  Iowa,  Illinois  and  other  states,  and  as  such  com- 
mon carrier  is  now  and  for  many  years  last  past  has  been 
engaged  in  the  transportation  of  interstate  commerce  between 
various  points  in  the  states  of  Illinois,  Minnesota.  Wisconsin 
and  the  state  of  Iowa,  and  between  various  points  in  the 
state  of  Illinois  and  the  state  of  Iowa,  and  particularly  be- 
tween the  cities  of  St.  Paul  and  Minneapolis,  Minnesota,  and 
Rock  Island  in  the  state  of  Illinois  and  Sheffield,  Waterloo, 
Ottumwa,  Cedar  Rapids,  Wilkin,  Atlantic,  Prairie  City,  Co- 
lumbus Junction,  Colfax,  Buxton,  Melcher,  Des  Moines,  En- 
teprise,  Pella,  Belta,  Fairfield,  Keokuk,  Eddyville,  and  many 
other  cities,  towns  and  villages  which  are  located  on  and  near 
its  line  of  railroad  in  the  state  of  Iowa,  and  its  line  of  rail- 
road connects  with  the  lines  of  railroad  of  many  other  rail- 
way companies  in  Iowa,  by  means  of  which  commerce  is 
transported  between  the  said  cities  in  Minnesota  and  Wiscon- 
sin, and  particularly  between  Rock  Island,  Illinois,  and  hun- 
dreds of  cities,  towns  and  villages  in  the  state  of  Iowa. 

IV.  For  many  years  last  past  each  of  the  above-named 
plaintiffs  has  had  a  large  and  profitable  business  in  the  lawful 
sale  of  beer  and  other  malt  liquors  at  its  place  of  business  in 
Minnesota,  Wisconsin,  and  at  its  place  of  business  in  Rock 
Island,  Illinois,  to  a  large  number  of  persons  residing  in  the 
state  of  Iowa,  at  various  cities,  towns  and  villages  therein, 
on  and  near  the  lines  of  railroad  of  the  defendant  company 
and  on  the  lines  of  railroad  of  its  connecting  carriers  in  Iowa, 
which  beer  and  other  fermented  liquors  were  sold  by  each 


BILLS    OF    SPECIAL    CASES.  719 

of  the  plaintiffs  at  its  place  of  business  in  Minnesota  and 
Wisconsin  aforesaid,  and  particularly  at  its  place  of  business 
in  Rock  Island,  Illinois,  and  were,  on  the  direction  and  orders 
of  the  purchasers  thereof,  delivered  by  the  plaintiff  to  said 
defendant  at  its  station  in  Minnesota  and  Illinois,  and  par- 
ticularly at  its  station  in  Rock  Island,  Illinois,  for  transpor- 
tation to  the  various  cities,  towns  and  villages  in  Iowa,  where 
reside  the  purchasers  aforesaid,  and  which  said  beer  and 
other  fermented  malt  liquors  were  purchased  by  said  persons 
for  their  own  personal  use  and  private  consumption ;  that 
each  of  the  plaintiffs  herein  mentioned  has  a  large  number  of 
customers  in  the  towns  and  cities  herein  mentioned,  as  well 
as  in  other  tov^Mis  and  cities  in  the  state  of  Iowa ;  and  that  a 
number  of  said  towns  and  cities,  such  as  Buxton,  W^hiteberg, 
Maple  and  Seevers,  are  located  all  the  way  from  four  to 
twelve  miles  from  said  railway's  nearest  railroad  station  in 
Iowa,  and  are  inland  towns;  that  each  of  the  plaintiffs  has  a 
large  number  of  customers  in  the  said  inland  towns,  and  in 
other  inland  towns  not  herein  mentioned,  and  that  many  of 
the  purchasers  of  beer  and  fermented  malt  liquors  from  each 
of  the  plaintiffs,  who  reside  in  said  inland  towns,  as  well  as 
other  customers  and  purchasers  of  beer  and  fermented  malt 
liquors  from  each  of  the  plaintiffs  residing  within  the  towns 
and  cities  and  villages  through  which  the  said  railway  com- 
pany's line  runs  and  at  which  it  has  places  of  business,  have 
for  many  years  past  presented  and  given  to  the  defendant  at 
its  various  railway  stations  to  which  such  shipments  were 
billed,  written  orders  in  each  instance  and  for  each  shipment, 
authorizing  and  directing  the  railway  company  to  deliver 
such  shipment  to  some  drayman,  or  other  person,  whose 
name  was  in  each  instance  in  the  order  designated,  for  com- 
pletion of  the  shipment  of  such  beer  and  fermented  malt 
liquors  purchased  by  them,  and  for  carriage  thereof  from 
said  railway  stations  to  the  consignee  and  purchaser  at  his 
place  of  actual  residence :  that  in  each  instance  the  purchaser 
and  consignee  giving  and  making  such  order  has  duly  certi- 


720  SUTIS    IN    EQUITY.  • 

fied  that  the  shipment  of  beer  and  fermented  malt  liquors 
purchased  by  him  was  for  the  personal  use  of  the  consignee 
and  not  intended  by  him  or. by  any  person  interested  therein 
to  be  received,  possessed,  sold  or  in  any  manner  used  in  vio- 
lation of  any  law  of  the  state  of  Iowa ;  that  the  said  railway 
company  has  heretofore  and  for  a  long  time  and  until  re- 
cently accepted  for  shipment,  transported  and  delivered  beer 
and  other  fermented  malt  liquors  so  sold  by  each  of  the  plain- 
tiffs as  aforesaid  to  its  purchasers  at  the  places  where  they 
reside  or  to  which  the  shipments  w^ere  consigned,  and  has 
heretofore  accepted  such  written  orders  of  various  and  a 
large  number  of  consignees  of  each  of  the  plaintiffs  and  de- 
livered such  shipments  to  the  persons  designated  therein  upon 
such  written  order  in  each  instance  for  each  shipment  as 
hereinbefore  set  forth,  for  completion  of  delivery  to  the  ac- 
tual and  bona  fide  consignee ;  that  in  each  case  said  beer  and 
fermented  malt  liquors  were  plainly  and  correctly  labeled  and 
marked  with  the  quantity  and  kind  of  liquor  and  the  name 
of  the  consignee  at  the  time  of  tlie  delivery  of  said  shipments 
to  the  said  company  for  transportation  as  aforesaid  and  re- 
mained so  marked  and  labeled  until  after  delivery  to  the 
consignee. 

That  each  of  the  plaintiffs  for  several  years  past  has  had 
a  large  and  profitable  business  in  the  sale  of  beer  and  other 
fermented  malt  liquors  to  persons  residing  in  numerous 
towns,  cities  and  villages  in  Iowa,  who  purchased  the  same 
for  their  own  personal  use  and  private  consumption  and  who 
personally  consumed  the  same, .  and  who  have  in  the  past 
given  written  orders  in  each  instance  and  for  each  shipment 
for  the  delivery  thereof  to  some  drayman,  or  person,  naming 
him,  for  the  completion  of  delivery  to  the  purchasers  at  their 
respective  places  of  residence,  and  each  of  the  plaintiffs  has 
established  a  valuable  and  extensive  trade  and  good  will  with 
and  among  such  purchasers  and  consumers.  The  gross 
amount  of  the  annual  sales  to  such  purchasers  and  consumers 
by  each  of  the  plaintiffs  at  Rock  Island,  Illinois,  aforesaid, 
for  several  years  last  past  has  been  more  than  twenty  thou- 


BILLS    OF    SPECIAL    CASES.  721 

sand  dollars  per  year,  and  the  annual  worth  and  value  of 
such  business  and  trade  of  each  of  the  plaintiffs  at  that  place 
has  been  and  is  more  than  three  thousand  dollars. 

If  the  defendants,  as  they  now  threaten  and  intend  to  do, 
shall  continue  to  refuse  to  transport  any  beer  or  other  fer- 
mented malt  liquors  sold  by  the  plaintiff  at  its  places  of  busi- 
ness in  Minnesota,  Wisconsin  and  particularly  at  its  place  of 
business  at  Rock  Island,  Illinois,  for  private  consumption 
and  personal  use  in  Iowa  b}'-  the  purchasers  thereof,  wliich 
is  to  be,  as  a  matter  of  convenience  and  necessity,  delivered 
to  some  drayman  or  other  person  upon  a  specific  written 
order  in  each  instance  aiid  for  each  shipment,  by  the  bona  fide 
•consignees,  all  that  class  of  business  will  within  a  very  short 
time  be  utterly  ruined  and  destroyed ;  that  the  value  of  the 
business  of  each  of  the  plaintiffs  so  ruined  and  destroyed 
greatly  exceeds  the  sum  of  three  thousand  dollars. 

If,  in  the  future,  the  defendant  company  does  not  refuse 
to  perform  its  duties  to  the  public  as  a  common  carrier,  but 
shall,  as  it  is  required  by  law,  corttinue  to  receive,  transport 
and  deliver  beer  and  other  fermented  malt  liquors  which  may 
be  bought  at  its  places  of  business,  and  especially  at  its  place 
of  business  in  Rock  Island,  Illinois,  from  each  of  the  plain- 
tiffs b}'  purchasers  residing  in  Iowa  for  their  own  personal 
i:se  and  private  consumption  therein,  and  who  may  desire  to 
have  the  same  transported  and  delivery  thereof  completed  to 
t'lem  at  their  respective  homes  within  the  city  in  which  they 
reside  and  there  delivered  to  them  in  each  instance  upon 
their  written  order  for  each  shipment,  to  deliver  such  ship- 
ments to  some  designated  person  or  drayman  solely  for  com- 
pletion of  delivery  to  the  consignees  giving  such  written  or- 
der in  each  instance  and  for  each  shipment,  each  of  the  plain- 
tiffs will  continue  to  have  in  the  future  as  it  has  in  the  past 
a  large  and  profitable  business  in  such  sales  of  beer  and  other 
fermented  malt  liquors  at  its  places  of  business  in  Minnesota, 
Wisconsin,  and  especially  at  its  place  of  business  in  Rock 
Island.  Illinois ;  but  the  continued  refusal  of  the  defendant 
company  to  discharge  its  duties  as  a  common  carrier  of  inter- 


722  SUTIS    IN    EQUITY. 

state  commerce  as  aforesaid  in  the  transportation  of  such  beer 
and  other  fermented  malt  hquors  will,  as  a  direct,  necessary 
and  inevitable  result,  ruin  and  destroy  a  large  amount  of  the 
business  of  each  of  the  plaintiffs  and  will  inflict  upon  it  great 
damage  and  irreparable  loss. 

The  matter  of  controversy  between  the  plaintiffs  and  the 
defendants  in  this  suit  exceeds  in  behalf  of  each  plaintiff, 
exclusive  of  interest  and  costs,  the  sum  of  three  thousand 
dollars. 

V.  That  it  is  not  only  inconvenient,  but  impossible,  for 
many  of  the  consignees,  especially  those  who  live  in  towns 
some  distance  from  the  stations  on  the  defendants'  line  of 
railway  in  Iowa,  to  give  up  their  time  and  business  person^ 
ally  to  go  to  such  stations  and  personally  receipt  for  such 
shipments  and  carry  them  away  in  person ;  that  notwithstand- 
mg  said  railroad  company  is  permitted  by  the  act  of  March  4, 
1909,  chapter  321,  section  239,  35  U.  S.  Statutes  at  Large, 
page  1136,  to  deliver  intoxicating  liquor  upon  the  written 
order  of  the  bona  fide  consignee,  and  notwithstanding  the 
fact  that  it  has  for  more  than  two  years  in  the  past  recog- 
nized, received  and  delivered  upon  the  written  order,  in  each 
instance  and  for  each  shipment,  of  the  bona  fide  consignee, 
many  purchases  of  malt  .and  fermented  liquors  sold  by  each 
of  the  plaintiffs  to  persons  residing  at  and  near  many  of  the 
stations  on  the  line  of  the  defendants'  railway  to  draymen  or 
other  carrier  for  completion  of  delivery  upon  the  bona  fide 
order  of  consignees  in  each  instance,  it  does  now  wrongfully 
and  unlawfully  refuse  to  accept  for  transportation  all  ship- 
ments of  intoxicating  liquors,  and  all  shipments  of  beer  and 
fermented  malt  liquors  made  by  each  of  the  plaintiffs  to  all 
purchasers  in  the  state  of  Iowa  who  desire  and  purchase  said 
beer  and  fermented  malt  liquors  for  personal  use  and  private 
consumption,  where  the  consignee  shall  not  personally  appear 
at  the  railway  station  of  the  defendant  to  which  said  ship- 
ment was  consigned  and  in  person  receipt  for  the  same  and 
personally  carry  said  liquor  away  from  said  station.  And 
the  plaintiffs  and  each  of  them  aver  that  the  said  defendant 


BILLS    OF    SPECIAL    CASES.  723 

refuses  to  accept  and  transport  such  liquors  upon  the  sole  and 
only  ground  that  it  is  advised  that  such  shipments  may  not 
lawfully  be  made,  and  that  the  transportation  and  delivery 
thereof  as  directed  and  requested  and  upon  the  written  order 
in  each  instance  and  for  each  shipment  of  the  bona  Ude  con- 
signee solely  for  carriage  from  the  defendants'  stations  to 
the  places  of  residence  of  the  respective  purchasers  and  con- 
signees thereof,  would  be  a  violation  of  the  laws  of  the 
United  States  and  the  laws  of  the  state  of  Iowa,  and  because 
the  defendant  claims  and  asserts  that  all  shipments  of  beer 
or  other  fermented  liquors  or  intoxicating  liquors  into  Iowa 
for  the  personal  use  of  the  consignee  are  prohibited  unless 
said  such  consignee  in  person  appears  at  the  station  and 
signs  the  record  book  provided  for  by  the  laws  of  the  state  of 
Iowa  pursuant  to  provisions  -of  Section  2421-A,  Supple- 
mental Supplement,  1915,  which  read  as  follows:  [Here 
follows  the  statute. '\ 

VI.  All  of  the  beer  and  other  fermented  malt  liquors  which 
the  plaintiffs  sell  at  their  respective  places  of  business  afore- 
said, and  especially  at  Rock  Island,  Illinois,  to  purchasers  in 
Iowa,  who  desire  to  have  the  same  by  the  defendant  railway 
company  received,  transported  and  delivered  to  them  where 
they  reside  in  Iowa,  as  hereinbefore  set  forth,  constitutes  and 
is  interstate  commerce,  and  if  the  said  defendant  shall  con- 
tinue to  refuse  to  discharge  its  duties  as  a  common  carrier  of 
interstate  commerce  by  rail  in  the  transportation  of  such  beer 
and  other  fermented  malt  liquors,  daily  and  constant  losses 
will  accrue  to  each  of  the  plaintiffs,  and  such  refusals  will 
give  rise  daily  and  constantly  to  separate  and  numerous 
causes  of  action  between  each  of  the  plaintiffs  and  the  de- 
fendant company,  and  great  multiplicity  of  causes  of  action 
will  accrue  in  favor  of  each  of  the  plaintiffs  and  against  the 
defendant  company.  If  each  of  the  plaintiffs  shall  be  com- 
pelled to  resort  to  action  at  law  to  recover  damages  or  secure 
other  relief  or  remedy  against  the  defendant  company,  great 
loss  of  sales,  patronage  and  profits  will  be  suffered  and  ir- 
ceparable  loss  will  result  to  each  of  the  plaintiffs  as  the  imme- 


724  SUTIS    IN    EQUITY. 

diatc,  direct  and  inevitable  effect  of  ?uch  refusal  of  the  de- 
fendant company  to  receive,  transport  and  deliver  such  beer 
and  other  fermented  malt  liquors  as  aforesaid.  By  reason  of 
the  great  difficulty  of  proving  the  loss  of  sales,  patronage, 
profits  and  injury  to  and  impairment  of  the  business  of  the 
plaintiffs,  and  each  of  them,  as  well  as  the  reputation  and 
good  will  possessed  by  each  of  them,  and  the  consequent  im- 
possibility of  ascertaining  or  assessing  the  damages  suffered 
by  each  of  the  plaintiffs  as  a  result  of  such  a  refusal  of  the 
defendant  company,  the  plaintiffs  have  no  adequate  remedy 
at  law.  Pending  the  commencement,  trial  and  determination 
of  actions  at  law  to  recover  damages  suffered  by  the  plain- 
tiffs, and  each  of  them,  on  account  of  such  refusal  on  the 
part  of  the  defendant  company,  the  business  of  each  of  the 
plaintiffs,  its  reputation  and  'good  will  will  be  ruined  and  de- 
stroyed, and  each  will  thereby  suffer  great  damage  and  ir- 
reparable loss  unless  the  said  defendant,  its  receivers,  officers, 
agents,  servants  and  employes,  be  enjoined  and  restrained  by 
order,  by  judgment  and  decree  of  this  court  as  hereinafter 
prayed. 

VII.  No  valid  law  of  the  state  of  Iowa  or  of  the  United 
States  prohibits  or  prevents  the  defendant  company  from  re- 
ceiving and  transporting  from  its  various  station  in  Minne- 
sota or  Illinois,  including  its  station  at  Rock  Island,  Illinois, 
into  Iowa,  any  shipment  of  beer  or  other  fermented  malt 
liquors  for  the  personal  use  of  the  purchasers  thereof,  nor 
the  delivery  thereof  to  a  person  other  than  the  consignee, 
upon  the  written  order  in  each  instance  and  for  each  ship- 
bent  of  the  bona  fide  consignee,  solely  for  the  purpose  of 
carrying  said  beer  or  other  fermented  malt  liquors  from  the 
station  of  the  defendant  railway  lines  to  the  place  of  resi- 
dence of  .the  consignee,  or  the  making  or  giving  a  written 
order  in  each  instance  for  each  shipment  for  that  purpose, 
and  the  construction  or  application  of  any  law  of  the  state 
of  Iowa  in  such  manner  as  to  prohibit  the  defendant  from 
receiving  such  order  or  acting  in  accordance  therewith  would 
violate  the  constitution  of  the  United   States,   and  especially 


BILLS    OF    SPECIAL    CASES.  725 

the  commerce  clause  of  Section  8  of  Article  I  thereof  and 
also  that  provision  of  Section  1  of  the  fourteenth  amendment 
thereto,  which  provides  that : 

"No  state  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  state  deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law ;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
law."  And  any  construction  or  application  of  any  act  of 
Congress  or  law  of  the  United  States  which  would  prohibit 
or  prevent  the  defendant  company  from  so  doing  would 
violate  the  constitution  of  the  United  States  and  especially 
that  provision  of  Article  V,  which  in  substance  provides  that : 

"Nor  (shall  any  person)  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law,"  as  well  as  the  com- 
merce clause  thereof. 

The  plaintiffs,  on  information  and"  belief,  aver  that  the  de- 
fendant receivers'  company  and  its  agents  and  servants  have 
refused,  and  intend  to  continue  to  refuse,  to  accept,  transport 
and  deliver  the  shipments  aforesaid  upon  the  sole  and  only 
ground  that,  as  they  /claim,  such  shipment,  transportation  or 
delivery  would  be  a  violation  of  the  laws  of  the  state  of  Iowa 
as  hereinbefore  set  forth. 

In  consideration  whereof  and  in  as  much  as  the  plaintiflFs 
have  and  each  of  the  plaintiffs  has  a  common  cause  in  this 
litigation  and  each  of  said  plaintiffs  is  without  remedy  in  the 
premises  by  the  strict  rules  of  the  common  law  and  can  only 
have  relief  in  a  court  of  equity  where  matters  of  this  kind 
are  properly  cognizable  and  relievable,  the  plaintiffs  pray: 

1.  The  order,  judgment  and  decree  of  this  court  forbid- 
ding and  restraining  the  said  defendants  and  defendant  rail- 
way company  from  refusing  or  failing  to  accept,  receive, 
transport,  carry  or  deliver  beer  or  other  fermented  malt 
liquors  sold  at  its  places  of  business,  and  especially  at  its 
place  of  business  at  Rock  Island,  Illinois,  by  either  of  the 
plaintiffs  to  persons  residing  in  Iowa  who  have  heretofore 
purchased,  or  who  may  hereafter  purchase  the  same  for  their 


726  SUTIS    IN    EQUITY. 

personal  use  and  private  consumption,  and  who  shall  desire 
and  direct  that  the  same  be  transported  into  Iowa  for  de- 
livery therein  to  the  purchasers  at  the  places  where  they  re- 
side, including  such  shipments  of  beer  and  fermented  malt 
liquors  in  respect  to  which  the  purchaser  may  find  it  con- 
venient or  necessary  or  deem  it  expedient  to  authorize  and 
direct,  upon  their  written  order  in  each  instance  and  for  each 
shipment,  the  delivery  of  the  same  to  some  specific  person  or 
drayman  for  completion  of  delivery  to  the  purchasers  at  their 
places  of  residence,  and  also  commanding  and  enjoining  the 
said  defendant  company,  the  receivers,  the  officers,  agents, 
servants  and  employes  to  accept,  receive,  transport  and  de- 
liver all  of  such  beer  and  fermented  malt  liquors  upon  lawful 
and  reasonable  conditions. 

2.  The  order,  judgment  and  decree  of  this  court  forbid- 
ding and  restraining  the  defendant  company,  its  receivers, 
officers,  agents,  servants  and  employes  from  applying  or  put- 
ting into  any  efTect  any  rule  or  regulation  made  by  said  de- 
fendant company  in  so  far  as  the  same  relate  or  purport  to 
relate  to  the  refusal  to  accept  shipments  of  beer  or  other 
fermented  liquors  which  are  sold  in  Minnesota,  Wisconsin 
or  Illinois  by  plaintiffs  and  intended  for  the  personal  use  of 
the  purchaser  and  consignee  and  without  any  intent  on  the 
part  of  such  consignee  or  any  one  interested  in  said  liquors 
to  receive,  possess  or  use  the  same  in  violation  of  the  laws 
of  the  state  of  Iowa. 

3.  That  pending  the  trial  and  until  the  final  determination 
of  this  suit  by  the  interlocutory  decree  and  temporary  injunc- 
tion of  this  court  tlie  said  defendant  company,  its  receivers, 
officers,  agents,  servants  and  employes  be  forbidden,  re- 
strained, enjoined  and  commanded  as  above  prayed,  and  that 
by  a  temporary  restraining  order  of  this  court  it  and  they  be 
so  forbidden,  restrained,  enjoined  and  commanded  until  the 
plaintiffs'  application  for  such  interlocutory  decree  and  tempo- 
rary injunction  shall  have  been  heard  and  determined,  and 
for  such  other  and  further  relief  as  may  be  just  and  equit- 
able. 


BILLS    OF   SPECIAL    CASES.  727 

And  may  It  please  your  honors  to  grant  unto  the  plaintiffs 
a  writ  of  subpoena  of  the  United  States  of  America,  issuing 
out  of  and  under  the  seal  of  this  honorable  court,  directed 
to  the  said  defendants  and  the  defendant  company,  command- 
ing it  on  a  day  certain  therein  to  be  named  and  under  a  cer- 
tain penalty  to  be  and  appear  before  this  honorable  court, 
then  and  there  to  answer,  but  not  under  oath  (answer  under 
oath  being  hereby  expressly  waived),  all  and  singular  the 
premises,  and  to  stand  to  and  perform  and  abide  by  such 
order,  direction  and  decree  as  may  be  made  against  the  de- 
fendants in  the  premises. 

Theo.  Hamm  Brewing  Company. 

By  Edward  C.  Nippolt, 

1st  Vice-President. 

(1)  The  parties  plaintiflf  here  have  an  interest  in  the  subject  of  the 
action  and  in  obtaining  the  reHef  demanded  in  accordance  with  the  pro- 
vision of  Rule  Zl ,  and  hence  they  may  join  in  this  suit. 

Note  the  separation  of  the  statements  of  the  grounds  of  jurisdiction, 
the  federal  question  in  paragraph  I  and  the  jurisdictional  amount  in 
paragraph  IV,  while  the  detailed  statement  of  the  federal  question  is  made 
in  paragraph  VII. 

Note  that  though  a  temporary  restraining  order  is  prayed  in  paragraph 
VII,  motion  therefor  is  not  made  and  no  action  on  said  prayer  takes  place. 

Note  also  that  the  verification  is   made  only  by  one  plaintiff. 

The  right  to  sue  a  federal  receiver  without  leave  of  the  appointing 
court  is  granted  in  Judicial  Code.  Sec.  66,  where  the  issue  is  his  acts  or 
transactions  in  conducting  the  business,  as  in  this  case. 


No.  473. 

Amendment  to  Bill  to  Enjoin  a  Strike,  Bringing  in  New 

Parties.  (1) 

{Caption. '\ 

To  the  Honorable,  the  Judges  of  said  Court: 

Plaintiff,  by  way  of  amendment  to  his  bill  of  complaint 
herein,  by  leave  of  court  first  had  and  obtained,  humbly  com- 
plaining, says : 

That  it  reaffirms  and  makes  part  hereof  all  and  singular 
the  allegations  of  the  original  bill  herein:     That  each  of  said 


728  SUTIS    IN    EQUITY. 

defendant  railway  companies  named  in  said  bill  has  in  its 
employment  a  large  number  of  locomotive  engineers  who  are 
members  of  the  order  or  association  known  as  the  Brother- 
hood of  Locomotive  Engineers,  an  unincorporated  association 
of  railway  locomotive  engineers,  and  also  a  large  number  of 
firemen,  who  are  in  like  manner  members  of  an  association  or 
order  known  as  the  Brotherhood  of  Locomotive  Firemen, 
which  is  as  plaintiff  is  informed  and  believes,  an  unincor- 
porated association  of  railway  locomotive  firemen ;  and  that 
each  of  said  associations  is  controlled,  as  plaintiff  is  informed, 
by  certain  rules,  regulations  and  by-laws  by  which  all  its 
members  have  sworn  to  obey ;  that  one  P.  M.  Arthur,  whose 
full  first  name  is  unknown  to  plaintiff,  is  the  chief  officer  of 
said  Brotherhood  of  Locomotive  Engineers,  and  as  such 
guides,  directs  and  controls  the  actions  of  its  members  under 
the  rules  of  said  association,  and  as  such  exercises  a  control- 
ling influence  upon  the  actions  of  said  members  in  all  matters 
treated  by  said  rules  and  regulations.  That  one  F.  P. 
Sargent,  whose  first  name  is  unknown  to  plaintiff,  is  the  chief 
officer  of  said  Brotherhood  of  Locomotive  Firemen  and  exer- 
cises a  similar  controlling  influence  upon  the  actions  of  its 
said  members. 

That  one  of  the  rules  and  regulations  or  laws,  so-called, 
of  said  Brotherhood  of  Locomotive  Engineers,  as  plaintiff 
is  informed,  requires  all  its  members  who  are  in  the  employ  of 
any  railway  company,  whenever  order  to  that  effect  shall 
be  given  by  its  said  chief  officer,  to  refuse  to  receive,  handle, 
or  carry,  or  assist  in  receiving,  handling  or  carrying,  cars  of 
freight  from  any  other  railway  company  whose  employes, 
members  of  said  association,  have  engaged  in  a  "strike"  so- 
called,  against  their  employer  company.  That  such  "strike" 
has  been  declared  against  plaintiff  by  the  locomotive  engi- 
neers in  its  employment  who  are  members  of  said  brother- 
hood, by  and   with  the  consent   and   approval   of  said  

Arthur  and  under  his  direction,  and  they  have  quit  the  serv- 
ice of  plaintiff  and  are  no  longer  in  its  employ. 


BILLS    OF    SPECIAL    CASES.  729 

And  plaintiff  says  that  said  Arthur  now  gives  out 
pubh'cly  and  threatens  that  unless  plaintiff  shall  submit  to 
certain  demands  on  the  part  of  its  said  striking  employes  who 
have  so  quit  its  service  and  reinstate  them  in  its  employ  and 
discharge  the  other  engineers  whom  plaintiff  has  employed 
since  said  strike  was  inaugurated,  he  will  order  all  members 
of  said  brotlierhood,  employes  of  the  other  railroad  companies 
defendant  herein  whose  lines  of  railroad  connect  with  plain- 
tiff's railroad  to  refuse  to  receive  from  or  deliver  any  cars  of 
freight  to  plaintiff,  or  to  aid  in  any  way  in  handling,  carrying, 
or  forwarding  any  cars  which  have  been  hauled  over  plaintiff's 
road. 

That  if  said  order  be  promulgated  and  continued,  large 
numbers  of  the  employes  of  defendant  companies  will  refuse 
to  obey  the  order  of  injunction  heretofore  issued  herein  and 
will  in  consequence  thereof  be  compelled  to  quit  the  service 
of  their  respective  companies  as  well  as  to  be  guilty  of  a  vio- 
lation of  said  order  of  injunction.  That  the  result  of  the  pro- 
mulgation and  continuance  of  said  order  will  be  to  seriously 
interrupt  and  hamper  the  interstate  traffic  of  large  sections 
of  the  country  and  will  entail  enormous  and  incalculable  losses 
upon  the  public  and  all  the  railway  companies  defendant  here- 
in, as  well  as  to  plaintiff,  and  also  upon  all  of  their  em- 
ployes. That  said  order  or  rule  is  in  direct  contravention  of 
the  Act  of  Congress  in  such  cases  made  and  provided,  and  is  in 
fact  intended  and  adapted  to  induce  said  employes  of  defend- 
ant companies  to  violate  the  law  and  orders  of  this  honorable 
court. 

Said  defendant  Sargent,  as  the  chief  officer  of  said  Broth- 
erhood of  Locomotive  Firemen,  gives  out  and  threatens  that 
in  case  such  order  is  made  by  said  Arthur  for  said  Brother- 
hood of  Locomotive  Engineers,  he,  the  said  Sargent,  will 
promulgate  a  similar  order  which  shall  be  binding  on  said 
Brotherhood  of  Locomotive  Firemen.  That  by  the  means 
aforesaid  said  Arthur  and  Sargent  are  conspiring  and  con- 
federating with  one  another  and  others  whose  names  are 
unknown  to  plaintiff,  to  induce  the  employes  of  the  defendant 


730  SUTIS    IN    EQUITY, 

companies  to  violate  the  law  and  the  orders  of  this  court ;  and 
for  the  purpose  of  inducing  defendant  companies  and  their 
officers  and  agents  to  injure  plaintiff  by  refusing  to  inter- 
change interstate  freight. 

Wherefore  plaintiff  prays  that  the  said  P.  AI.  Arthur  and 

said  Sargent  may  be  made  parties  defendant  hereto,  as 

if  joined  in  the  original  bill  herein;  that  a  provisional  order 
may  be  issued  out  of  and  under  the  seal  of  this  court,  directed 

to    said    P.    M.    Arthur    and Sargent,    enjoining    and 

restraining  them  from  issuing,  promulgating  or  continuing 
in  force  any  rule  or  order  of  any  kind  which  shall  require 
or  command  any  employes  of  any  of  the  defendant  companies 
to  refuse  to  receive,  handle  or  deliver,  or  be  in  any  way 
instrumental  in  refusing  to  receive,  handle  or  deliver,  any 
cars  of  freight  from  and  to  plaintiff,  or  from  refusing  to 
receive  or  handle  cars  of  freight  which  have  been  hauled 
over  plaintiff's  road,  and  from  in  any  way,  directly  or  in- 
directly, endeavoring  to  persuade  or  induce  any  employes  of 
the  defendant  companies  not  to  extend  the  same  facilities  to 
plaintiff  for  interchange  of  traffic  as  are  extended  by  their 
respective  employes  to  other  railway  companies.  And  in  case 
such  rule  or  orders  shall  have  been  promulgated  by  said  de- 
fendants, plaintiff  prays  the  court  to  issue  its  mandatory 
injunction  herein  requiring  said  defendants,  and  each  of  them, 
to  recall  and  rescind  such  orders  and  to  instruct  the  members 
of  said  Brotherhood  of  Locomotive  Engineers  and  Firemen, 
respectively  to  make  no  discrimination  of  any  kind  against 
plai.ntiff  in  the  interchange  of  traffic  as  aforesaid ;  and  for 
such  other  and  further  relief  as  to  the  court  shall  seem  equit- 
able and  proper.  R.  X., 

Solicitor  for  Complainant. 

State  of , 

County  of ,  ss. 

Personally  appeared  before  the  undersigned,  a  notary  pub- 
lic within  and  for  county,  ,  R.  X.,  who  being  duly 

sworn  says,  that  he  is  the  solicitor  and  general  counsel  of  the 


BILLS    OF    SPECIAL    CASES.  731 

complainant  corporation.  The  Toledo,  Ann  Arbor  &  North 
Michigan  Railway  Company;  that  he  has  read  the  foregoing 
amendment  to  its  bill  of  complaint  and  knows  the  contents 
thereof;  that  as  to  such  matters  and  things  therein  as  are  al- 
leged on  information  and  belief,  affiant  believes  them  to  be 
true,  and  the  other  matters  and  things  therein  stated  are  true 
in  substance  and  in  fact.  R.  X. 

Sworn  to  before  me  and  subscribed  in  my  presence  this 

day  of ,  A.  D.  .  B.  R., 

Notary  Public, 
[Seal.]  County,  . 

(1)  This  amendment  was  made  to  bill  in  Toledo,  etc.,  R.  Co.  v.  Penn- 
sylvania Co.,  see  No.  312,  54  Fed.  730,  to  bring  in  officers  of  the  labor 
unions  ordering  strike.  In  the  matter  of  enjoining  strikes  see  also  Sec. 
20  of  the  Clayton  Act,  Oct.  15,  1914,  38  Stat.  L.  738,  aijd  Alaska  Steam- 
ship Co.  V.  International  Longshoremen's  Assn.,  236  Fed.  964. 


No.  474. 

Bill  in  Equity  to  Subject  Property  of  Absent  Defendant  to 
Pay  a  Judgment.  (1) 

The  District  Court  of  the  United  States, 
for  the District  of  . 


A.  B. 

vs. 
C.  D. 
E.  F. 
G.  H. 


-  In  Equity.     No. 


J 


To  the  Honorable  Judge  of  the  District  Court  of  the  United 
States  within  and  for  the District  of : 

A.    B.,   of  ,   plaintiflF  herein,   respectfully  shows   unto 

your  honors  that  at  the  term,    1894,  of  this  court  he 

recovered  a  judgment  at  law  in  cause  No.  ,   for  


732  SUTIS    IN    EQUITY. 

dollars,  and  costs  amounting  to dollars,  amounting  in 

the  aggregate  to dollars,  against  C.  D.,  which  said  judg- 
ment is  still  in  full  force  and  unreversed. 

That  execution  was  duly  issued  upon  said  judgment  to  the 

marshal  of  said  district  on  the  day  of  ,  1894,  and 

levy  was  duly  made  upon  the  personal  property  of  said  C.  D., 

and  only  the  sum  of  dollars  made  upon  said  writ  of 

execution,  and  the  same  was  returned  unsatisfied  on  the  

day  of ,    1894,   leaving  unpaid  and  still  due  upon  said 

judgment  the  sum  of  dollars,  with  interest. 

That  plaintiff  is  informed  and  believes  that  the  said  C.  D. 
has  fled  the  country,  and  that  certain,  property  of  his,  to  wit. 

money   of  or  about  the   value  of  dollars,   sufficient   to 

satisfy  the  judgment,  is  still  in  the  possession  and  under  the 
control  of  one  E.  F.,  but  which  plaintiff  is  unable  to  reach 
by  process  of  law ;   and   plaintiff  is  also   informed   that   one 

G.  H.,  an  alien,  residing  in  ,  without  this  district  and  the 

jurisdiction  of  this  court,  claims  some  interest  or  right  to  the 
money  aforesaid  now  in  the  possession  of  said  E.  F.,  and 
the  property  of  said  C.  D. 

Wherefore  plaintiff  prays  that  C.  D.,  E.  F.,  and  G.  H. 
be  made  parties  defendant  herein,  and  that  process  issue  re- 
quiring them  to  appear  and  answer  this  bill  of  complaint ; 
that  said  G.  H.  be  required  especially  to  answer  by  what  right 
or  title  he  claims  the  money -aforesaid,  and  to  set  forth  his 
claims  in  this  suit;  and  that  E.  F.  be  required  especially  to 
answer  how  much  money  belonging  to  said  C.  D.  he  has  now 
in  his  possession,  and  what  is  the  indebtedness  due  to  him  from 
the  said  C.  D.,  and  that  after  payment  of  all  lawful  and 
equitable  prior  claims  the  said  money  may  be  applied  to  the 
judgment  recovered  by  plaintiff  against  said  C.  D.  until  further 
order  of  this  court,  and  for  such  other  and  further  relief  as 
may  be  proper,  just,  and  equitable.  A.  B., 

X.  &  X.',       '  Plaintiff. 

Solicitors  for  Plaintiff. 

[Verificafion.] 


BILLS    OF    SPECIAL    CASES.  7?tZ 

(1)  As  to  proceedings  in  case  of  absent  defendant  in  a  federal  court, 
see  Desty's  Fed.  Proc.  Sec.  25,  and  cases  there  cited,  and  R.  S.,  Sec. 
738,  brought  forward  in  Judicial  Code,  Sec.  57;  see  Perez  v.  Fernandez, 
220  U.  S.  224,  and  Schultz  v.  Di'ehl,  217  U.  S.  594. 


No.  475. 

Where  Postmaster  Excludes  Mail  Matter  Under  the  Act  of 
June  15,   1917,  40  Stat.  L.,  230. 
[Captioti.'] 

The  complainant  above  named  brings  this,  his  bill  of  com- 
plaint, against  the  defendant  and  complains  and  alleges  as 
follows : 

First.  Complainant  is  and  was  at  all  times  herein  mentioned 
a  corporation  duly  organized  and  existing  under  the  laws  of 
the  state  of  New  York,  with  its  principal  office  and  place  of 
business  at  34  Union  Square,  East,  borough  of  Manhattan, 
city  of  New  York,  and  engaged  in  the  business  of  publish- 
ing, among  other  things,  a  monthly  magazine  known  as  "The 
Masses."  owned  by  said  complainant. 

Second.  The  defendant  is  and  was  at  all  times  herein 
mentioned  the  postmaster  of  the  city  of  New  York,  in  said 
state  of  New  York,  and  in  his  official  capacity  as  postmaster 
in  said  city  of  New  York  has  the  control  of  the  receiving  and 
distribution  of  mails  in  and  through  said  post-office  in  the 
city  of  New  York. 

Third.  The  said  magazine  called  "The  Masses"  is  a 
monthly  publication  of  about  fifty  (50)  pages,  with  a  circula- 
tion of  from  twenty  to  twenty-five  thousand  copies  and  circu- 
lates extensively  through  the  city  and  state  of  New  York,  as 
well  as  other  states,  and  that  for  a  number  of  years  last  past 
the  said  magazine  has  so  circulated  and  has  been  received 
freely  at  the  post-office  of  the  city  of  New  York  and  else- 
where and  transmitted  through  the  same  and  circulated  there- 
from upon  the  payment  to  the  postal  authorities  of  the  amount 
required    upon    second-class    mail    matter.      It    is    absolutely 


7u 


SUTIS    I.\     EOUITY. 


necessary  to  the  maintenance  of  said  magazine  and  to  its  con- 
tinued publication  and  circulation  that  the  said  magazine 
should  be  freely  received  at  and  delivered  and  circulated  from 
the  said  post-office  in  the  city  of  New  York  and  not  be  held 
up  or  discrinn'nated  against  or  the  delivery  thereof  delayed  by 
the  said  defendant  or  other  person  exercising  control  over  the 
delivery  of  mail  from  said  post-office.  The  retail  price  of 
said  magazine  is  fifteen  ($.15)  cents  a  copy  and  the  subscrip- 
tion price  one  and  50/100  ($1.50)  dollars  a  year.  For  more 
particular  description  of  said  magazine,  complainant  begs  leave 
to  attach  a  copy  of  the  August,  1917,  number  or  issue  of  said 
magazine,  more  particularly  hereafter  referred  to,  and  alleges 
that  all  other  August,  1917,  numbers  of  said  magazine  are 
identical  with  the  copy  hereto  attached,  and  marked  "Exhibit 
A." 

Fourth,  According  to  the  usual  course  of  business  of  said 
complainant  in  publishing  its  said  magazine,  calHd  "The 
Masses,"  tlie  said  issues  of  the  magazine  designed  for  circu- 
lation through  the  mails,  and  particularly  those  intended  for 
circulation  in  different  portions  of  the  United  States,  are  de- 
livered properly  v^-rapped  and  postage  paid  at  the  post-office  at 
the  city  of  New  York  from  the  1st  to  the  10th  of  each  month. 
Pursuant  to  this  course  of  business,  the  complainant  caused  to 
be  delivered  many  hundred  copies  of  said  magazine  of  the 
August,  1917,  number,  identical  with  Exhibit  A  herein,  to  the 
defendant  as  postmaster  of  said  city  of  New  York  on  and  be- 
tween the  1st  and  5th  days  of  July,  1917,  for  the  purpose  of 
having  the  same  transmitted  through  the  mails  to  their  desti- 
nation, and  that  said  magazines  were  properly  wrapped  and 
addressed  in  the  usual  way,  and  the  postage  thereon  duly  paid 
to  the  proper  post-office  official  in  said  post-office,  agent  of  said 
defendant,  as  required  by  law,  which  said  money  was  duly  re- 
ceived and  has  ever  since  been  retained  by  said  defendant  in 
his  said  official  capacity.  Shortly  after  said  magazines  were 
received  at  said  post-office  for  mailing  and  the  postage  paid 
thereon,  as  above  stated,  and  on  or  about  July  5,  1917,  com- 
plainant received  from  said  defendant  the  following  letter: 


BILLS    OF    SPFXIAL    CASES.  735 

In  replying  please  refer  to  initials  and  date.     SMC. 

"Office  of  the  Postmaster,  United  States  Post-office. 
"TFM  New  York,  N.  Y. 

"Publishers  of  'The  Masses,'  34  Union   Square,   East,  .New 
York.  N.  Y. 

"Gentlemen :  Confirming  the  information  telephoned  to  you 
to-day,  you  are  informed  that  according  to  advice  from  the 
Solicitor  for  the  Post-office  Department,  the  August,  1917, 
issue  of  'The  Masses'  is  non-mailable  under  the  Act  of  June  15, 
1917.  Very  respectfully, 

"T.  J.  Patten,  Postmaster. 
"Per  Thos.  F.  Murphy, 
"M-jj  "Assistant  Postmaster." 

The  reference  in  said  letter  to  a  telephone  conversation  is  to 
a  communication  received  by  Merrill  Rogers,  the  business  man- 
ager of  the  complainant,  over  the  telephone,  from  some  assist- 
ant of  the  defendant  in  said  post-office  to  the  effect  that  said 
magazines  would  not  be  mailed  or  transmitted  from  said  post- 
office,  but  said  conversation  adds  nothing  to  the  information 
contained  in  said  letter.  Although  complainant  has  repeatedly 
applied  to  the  defendant,  his  agents  and  representatives  and  to 
the  solicitor  for  the  post-office  department  to  ascertain  more 
definitely  than  is  stated  in  said  letter  the  grounds  for  the  ex- 
clusion of  said  magazine  from  the  mails,  complainant  has  been 
able  to  obtain  no  further  information  upon  said  subject,  but 
said  magazines  are  still  held  at  said  post-office  by  order  of  the 
said  defendant  as  postmaster  and  he  refuses  to  permit  the  same 
to  be  delivered  or  transmitted  therefrom. 

Fifth.  Complainant  further  shows  that  said  magazines  so 
held  by  said  defendant  and  refused  access  to  the  mails,  as  above 
stated,  are,  as  complainant  is  informed  and  verily  believes,  in 
every  respect  mailable  under  the  act  of  June  15,  1917,  and 
under  any  and  all  other  laws  of  the  United  States,  and  that 
complainant  has,  in  all  respects,  duly  complied  with  all  pro- 


736  SUTIS    IN    EQUITY. 

visions  of  the  law  to  entitle  complainant  to  have  said  numbers 
of  said  magazine  duly  mailed  and  transmitted  through  the 
post-office  as  ordinary  second-class  matter,  and  that  the  act 
and  conduct  of  said  defendant  in  refusing  to  mail  said  maga- 
zines and  holding  the  same  to  be  non-mailable  is  wrongful  and 
unlawful  and  not  authorized  by  law.  Complainant  further 
alleges  that  it  was  not  and  never  has  been  accorded  any  oppor- 
tunity to  be  heard  in  the  matter  of  determining  said  magazines 
to  be  non-mailable  either  by  said  defendant  or  any  other  post- 
office  official.  The  action  of  said  defendant  in  treating  said 
magazines  as  non-mailable  matter  and  refusing  to  mail  the 
same,  if  continued,  will  work  irreparable  injury  to  the  com- 
plainant, will  completely  ruin  the  business  thereof  and  damage 
said  complainant  in  the  sum  of  many  thousands  of  dollars,  and 
that  said  loss,  damage  and  injury  will  amount  to  a  sum  far  in 
excess  of  $3,000,  and  that  complainant  is  wholly  without  any 
remedy  at  law,  in  consideration  whereof  complainant  is  remedi- 
less in  the  premises  by  the  rules  of  the  common  law  and  is 
relievable  only  in  a  court  of  equity  in  this  suit. 

Wherefore  complainant  prays  that  this  honorable  court  will 
grant  unto  him  due  process  of  subpoena  directed  to  said  de- 
fendant commanding  said  defendant  to  appear  herein  and  to 
answer,  but  not  under  oath,  answer  under  oath  being  hereby 
expressly  waived,  and  to  abide  and  perform  such  directions 
and  decrees  as  may  be  made  in  the  premises ;  that  an  injunction 
forthwith  issue  enjoining  and  restraining  the  defendant,  his 
agents,  servants  and  employes  and  all  persons  whomsoever, 
from  treating  the  August,  1917,  issue  of  said  magazine  known 
as  "The  Masses"  as  non-mailable  under  the  act  of  June  15, 
1917,  or  any  other  act  or  law  w^hatsoever,  and  that  said  de- 
fendant, his  agents,  servant's  and  employes  be  forthwith  com- 
manded to  transmit  said  magazines  through  the  mail  in  the 
usual  way  and  accord  to  complainant  thereon  the  rights  and 
privileges  of  second-class  mail  matter  whereon  the  lawful  post- 
age has  been  duly  paid  and  received  by  the  proper  post-office 
officials :  that  it  be  adjudged  and  determined  by  this  honorable 
court  that  said  magazines,  particularly  the  August,  1917,  issue 


BILLS    OF    SPECIAL    CASES.  737 

thereof,  is  mailable  under  the  act  of  June  15,  1917.  That  an 
order  to  show  cause  forthwith  issue  requiring  said  defendant, 
at  the  time  and  place  therein  specified,  to  show  cause  why  an 
injunction  should  not  issue  pendente  lite,  enjoining  and  re- 
straining the  defendant,  his  agents,  servants  and  employes  and 
all  other  persons  whomsoever  from  treating  the  August,  1917, 
issue  of  said  magazine,  known  as  "The  Masses,"  or  any  num- 
bers thereof,  as  non-mailable,  under  the  act  of  June  15,  1917, 
or  any  other  act  or  law  whatsoever,  and  that  said  defendant, 
his  agent,  servants  and  employes  be  forthwith  commanded  to 
transmit  said  magazines  through  the  mail  in  the  usual  way  and 
accord  to  the  complainant  thereon  the  rights  and  privileges  of 
second-class  mail  matter  whereon  the  lawful  postage  has  been 
duly  paid  and  received  by  the  proper  post-office  officials.  That 
it  be  adjudged  and  decreed  that  the  said  defendant  was  wholly 
without  authority  or  jurisdiction  to  determine  that  said  maga- 
zines were  non-mailable  and  that  the  order  and  action  of  said 
defendant  in  the  premises  is  wholly  void.  That  complainant 
recover  its  costs  and  disbursements  in  this  action  and  have  such 
other  further  order,  judgment  or  relief  in  the  premises  as  may 
be  just  and  proper.  G.  E.  R., 

Solicitor  and  of  Counsel  for  Complainant. 
[Veriii  cation.'] 


No.  476. 

To  Enjoin  Enforcement  of  Order  of  State  Railway  Com- 
mission. 
{Caption.] 

The  bill  of  complaint  of  the  Mobile  &  Ohio  Railroad  Com- 
pany against  the  Mississippi  Railroad  Commission,  F.  M. 
Sheppard,  president  and  member  of  said  commission;  George 
R.  Edwards  and  W.  B.  Wilson,  members  of  said  commission, 
and  Ross  A.  Collins,  attorney  general  of  the  state  of  Mis- 
sissippi. 

I.  Complainant,  Mobile  &  Ohio  Railroad  Company,  respect- 
fully shows  that  it  is  a  corporation  organized  and  existing 


738  SUTIS    IN    EQUITY. 

under  the  laws  of  the  state  of  Alabama,  owning  and  operating 
a  main  line  of  railroad,  with  certain  branches,  running  be- 
tween Mobile,  Alabama,  and  East  St.  Louis,  Illinois,  through 
the  state  of  Mississippi  and  other  states,  as  a  common  carrier 
of  freight  and  passengers. 

Complainant  further  shows  that  the  defendant,  the  INIissis- 
sippi  Railroad  Commission,  is  duly  organized  under  the  laws 
of  the  state  of  Mississippi,  and  that  its  office  is  at  Jackson, 
Mississippi,  the  capital  and  seat  of  government  of  the  said 
state;  that  the  defendant,  F.  M.  Sheppard,  is  the  president 
and  a  member  of  said  commission,  and  a  resident  and  citizen 
of  the  southern  district  of  Mississippi ;  and  that  defendant?. 
George  R.  Edwards  and  W.  B.  Wilson,  are  also  members  of 
said  commission,  and  the  said  F.  M.  Sheppard,  George  R. 
Edwards  and  W.  B.  Wilson  constitute  the  said  railroad  com- 
mission ;  that  the  said  Edwards  and  the  said  Wilson  are  citi- 
zens and  residents  of  the  northern  district  of  Mississippi,  awl 
that  the  official  residence  of  F.  M,  Sheppard,  Edwards  and 
Wilson  is  at  Jackson,  Mississippi,  in  the  southern  district  of 
said  state;  .that  defendant,  Ross  A.  Collins,  is  attorney  gen- 
eral of  the  state  of  Mississippi,  whose  domicile  and  office  are 
both  at  Jackson,  Mississippi,  in  the  southern  district  thereof. 

II.  Complainant  further  sliows  that  the  matters  in  contro- 
versy in  this  suit,  and  the  questions  involved  therein,  are 
questions  arising  under  the  constitution  and  the  laws  of  the 
United  States,  and  that  the  matter  in  controversy  exceeds  the 
sum  or  value  of  three  thousand  dollars,  exclusive  of  interest 
and  costs. 

III.  Complainant  furtlier  shows  that  on  account  of  the  war 
now  being  waged  in  Europe  complainant's  revenue  decreased 
to  such  an  extent  that  it  became  imperatively  necessary,  as 
will  be  more  fully  set  out  hereinafter,  for  complainant  to 
economize  rigidly  in  every  particular,  and  to  that  end  the 
vice-president  and  general  manager  of  complainant  wrote  to 
the  members  of  tlie  defendant  railroad  commission  and  re- 
quested them  to  call  a  meeting  at  Jackson,  Mississippi,  on  the 
15th  day  of  September,  which  they  did,  and  at  said  meeting 


BILLS   OF   SPECIAL   CASES.  739 

the  said  vice-president  and  general  manager  informed  the  de- 
fendant railroad  commission  of  the  condition  of  the  complain- 
ant's finances,  and  the  necessity  of  economy,  and  invited  sug- 
gestions from  the  commission  as  to  the  proper  steps  to  take, 
but  the  commission  was  unable  to  suggest  anything.  The 
complainant's  vice-president  and  general  manager  then  stated 
to  the  commission  that  it  was  his  purpose  to  discontinue  all 
passenger  trains  then  being  run  through  the  state  of  Missis- 
sippi on  complainant's  main  line,  except  two  daily  trains  each 
way. 

The  commission  neither  objected  nor  acquiesced  by  formal 
order  to  the  discontinuance  of  said  trains,  but  one  of  the  com- 
missioners moved  that  permission  be  granted  complainant  to 
discontinue  said  trains,  which  motion  was  seconded  by  an- 
other of  the  commissioners.  The  third  commissioner  then 
suggested  that  the  matter  be  considered  in  executive  session, 
and  no  vote  was  taken,  and  complainant  heard  nothing  more 
from  the  commission  concerning  the  matter.  Thereafter  the 
complainant  gave  notice  to  the  public  that  at  12 :01  a.  m., 
Monday,  September  28,  1914,  it  would  discontinue  two  daily 
passenger  trains  each  way  running  south  of  Meridian,  Missis- 
sippi, and  one  daily  passenger  train  running  between  Merid- 
ian, Mississippi,  and  Okolona,  Mississippi,  on  the  north, 
leaving  two  daily  trains  each  way  running  between  Meridian, 
Mississippi,  and  Mobile,  Alabama,  and  three  daily  trains  each 
way  running  north  of  Meridian  beyond  the  Tennessee-Missis- 
sippi state  line. 

The  said  scheduled  passenger  trains  were  discontinued  in 
accordance  with  the  said  notice  to  the  public,  but  under  an 
injunction  secured  by  the  attorney  general  of  Mississippi  from 
the  chancellor  of  the  chancery  court  of  Lauderdale  county, 
Mississippi,  special  trains  were  operated  on  the  former  sched- 
ules of  said  trains  until  the  5th  day  of  October,  1914,  on 
which  date  said  chancery  court  dissolved  said  injunction  on 
motion  of  defendant,  your  complainant  herein.  On  the  said 
5th  day  of  October,  1914,  said  special  trains  were  discon- 
tinued. 


'740  SUTIS    IN    EQUITY. 

IV.  On  the  28th  clay  of  September,  1914,  the  defendant, 
Mississippi  Railroad  Commission,  caused  to  be  issued  a  cita- 
tion to  this  complainant,  a  copy  of  which  is  hereto  attached, 
requiring  it  to  appear  before  said  commission  at  its  office  at 
Jackson,  Mississippi,  on  the  7th  day  of  October,  1914,  and 
show  cause,  if  any  it  could,  why  it  should  not  be  required  to 
continue  to  operate  between  Corinth,  Mississippi,  and  State 
Line,  Mississippi,  passenger  trains  known  as  Nos.  7,  8,  9,  10, 
11  and  12,  which  were  the  trains  that  had  been  discontinued 
as  above  stated.  In  obedience  to  said  citation,  complainant 
appeared  by  its  officers  and  agents  before  the  commission  on 
the  7th  day  of  October,  1914,  and  protested  against  the  entry 
of  any  order  requiring  complainant  to  run  any  trains  in  addi- 
tion to  those  being  run  on  that  date ;  that  is  to  say,  two  trains 
daily  each  way  south  of  Meridian,  Mississippi,  and  three 
trains  daily  each  way  north  of  Meridian,  and  complainant 
presented  its  case  fully  to  the  commission  both  as  to  the  law 
and  the  facts. 

But  over  complainant's  protest  the  commission,  on  October 
7,  1914,  entered  in  the  one  case  on  the  one  citation  six  sepa- 
rate orders,  requiring  complainant  to  run,  in  addition  to  those 
run  at  that  time,  two  trains  each  way  daily  from  Meridian, 
Mississippi,  to  Waynesboro,  Mississippi,  and  one  train  each 
way  daily  from  Meridian,  Mississippi,  to  Okolona,  Missis- 
sippi, over  complainant's  main  line.  Certified  copies  of  said 
order,  marked  "Exhibit  A,"  are  attached  to  this  bill,  and  filed 
herewith  as  part  hereof. 

V.  Complainant  further  avers  that  it  suffered  many  severe 
losses  in  business  during  the  fiscal  year  ending  June  30,  1914, 
and  at  the  end  of  that  year  its  financial  condition  was  not 
good,  and  it  had  no  accumulated  surplus  out  of  which  to  pay 
losses  during  this  period  of  depression.  During  the  month  of 
July,  1914,  complainant's  earnings  were  fair,  but  its  expenses 
were  exceedingly  heavy.  There  was  at  that  time,  and  had 
been  for  many  months,  a  general  business  depression.  On 
the  second  day  of  August,  1914,  the  war  now  being  waged  in 
Europe   was  begun,   and   this  complainant,   in  common   with 


BILLS    OF   SPECIAL    CASES.  741 

Other  business  interest  generally,  suffered  a  severe  reduction 
in  its  business  and  revenue.  Complainant  did  not  in  the 
month  of  August,  1914,  or  the  months  of  July  and  August, 
1914,  earn  sufficient  net  money  above  its  operating  expenses 
to  pay  its  fixed  charges  and  taxes.  During  the  month  of 
September  its  earnings  decreased,  and  its  total  earnings  dur- 
ing the  month  of  September  were  $133,975.96  less  than  they 
were  in  September,  1913.  During  the  period  of  the  first  two 
days  of  October,  1914,  the  earnings  were  $21,461  less  than 
they  were  during  the  corresponding  days  of  October.  1913. 
or  a  loss  of  over  $10,000  per  day.  Unless  complainant  is  per- 
mitted to  economize  in  every  possible  way  that  is  reasonable, 
in  view  of  the  condition  of  its  business,  as  well  as  of  the  needs 
of  the  public  which  complainant  serves,  the  outgo  of  com- 
plainant's rhoney  will  be  larger  than  its  income,  and  it  will 
have  no  means  by  which  it  can  operate  its  road.  Complain- 
ant has  put  into  effect,  and  is  putting  into  effect  as  fast  as 
possible,  every  economy  that  it  can,  and  still  it  has  not  yet 
been  able  to  reduce  its  expenses  to  the  point  where  they  can 
be  met  from  its  income.  Nor  will  all  of  the  economies  which 
it  had  determined  on,  but  has  not  yet  had  time  to  put  into 
effect,  accomplish  more  than  that  result.  The  views  of  those 
who  are  best  able  to  judge  are  that  the  war  in  Europe  will 
last  many  months,  and  the  complainant  sees  no  hopes  of  im- 
provement in  its  business  so  long  as  the  war  lasts. 

Complainant  delayed  taking  action  to  reduce  its  passenger 
service  in  the  state  of  Mississippi  until  the  necessity  therefor 
became  absolute.  Complainant  was  not  and  is  not  confronted 
with  the  mere  possibility  or  a  mere  probability  that  it  will  be 
unable  to  meet  its  expenses,  but  had  and  actually  reached  that 
point.  The  people  of  the  state  of  Mississippi,  and  several 
states  served  by  complainant,  have  ceased  on  account  of  the 
depression  in  business  to  bring  to  complainant  the  volume  of 
business  which  they  brought  before  the  European  war  com- 
menced, and  have  ceased  to  pay  complainant  the  amount  of 
money  which  they  paid  prior  to  that  time;  and  complainant 
says  that  it  is  inequitable  and  morally  wrong  for  them,  or  the 


742  SUTIS   IN   EQUITY. 

State  of  Mississippi,  through  the  railroad  commission,  or  any 
of  its  officers,  to  seek  to  compel  the  complainant  to  provide 
them  with  the  same  facilities  when  the  amount  of  business 
which  they  bring  to  complainant  will  not  enable  it  to  do  so 
and  live.  And  complainant  avers  that  the  said  orders  of  the 
commission,  attempting  to  require  the  complainant  to  furnish 
the  said  passenger  facilities  as  therein  set  out,  when  the  com- 
plainant's income  is  less  than  its  expenses,  separately  and  col- 
lectively, deprives  complainant  of  the  equal  protection  of  the 
laws  of  its  property  witliout  the  process  of  the  law.  in  viola- 
tion of  the  fourteenth  amendment  of  the  Constitution  of  the 
United  States  and  of  the  constitution  of  Mississippi. 

VI.  Complainant  further  avers  that  the  said  trains  which 
were  discontinued  did  not  pay  anything  above  the  cost  to 
complainant  of  operating  and  maintaining  them,  but  on  the 
contrary  their  cost  to  complainant  was  greater  than  the  in- 
come derived  from  them.  Trains  Nos.  7  and  8  were  put  on 
on  November  7,  1909;  Nos.  9  and  10  on  November  26,  1911, 
and  Nos.  11  and  12  on  July  20,  1913.  They  were  put  on  at 
the  solicitation  and  request  of  citizens  of  Meridian  and  else- 
where, and  it  was  believed  by  complainant's  officers  at  the 
time  they  were  put  on  that  they  would  not  pay,  but  when 
business  was  good,  and  when  complainant  was  earning  money 
above  all  of  its  expenses,  complainant  felt  that  it  was  justified 
in  furnishing  to  the  communities  which  it  serves  additional 
passenger  facilities,  even  though  the  trains  earned  no  money. 
But  complainant  says  that  there  was  no  legal  right  in  the 
public  or  in  the  state  to  require  the  inauguration  and  opera- 
tion of  said  trains  at  a  loss,  and  that  the  order  of  the  railroad 
commission  by  which  the  state  now  seeks  to  require  complain- 
ant to  operate  them,  whidi  can  not  be  done  except  at  a  loss, 
deprives  complainant  of  the  equal  protection  of  the  laws  and 
of  its  property,  without  due  process  of  law,  in  violation  of  the 
fourteenth  amendment  to  the  Constitution  of  the  United 
States  and  in  violation  of  the  constitution  of  Mississippi. 

VII.  Complainant  files  herewith,  marked  "Exhibit  B,"  to 
this  bill,  schedules  of  all   passenger   trains   running  through 


BILLS    OF   SPECIAL    CASRS.  743 

Meridian,  Mississippi,  between  stations  in  Mississippi,  which 
were  in  effect  prior  to  September  28.  1914;  and  also  the  new 
schedules  of  all  such  trains  which  complainant  put  in  effect 
on  Monday,  the  28th  day  of  September.  1914.  [Here  follozvs 
reference  to  schedules.] 

Complainant  avers  that  the  trains  which  it  now  operates 
under  the  new  schedule  are  adequate  and  furnish  reasonable 
service  under  the  conditions  existing  at  this  time,  and  which 
will  exist  so  far  as  can  be  seen  for  some  time  to  come. 

Complainant  further  avers  that  even  if  the  people  of  the 
state  of  Mississippi  and  other  persons  traveling  on  complain- 
ant's main  line  in  the  state  of  Mississippi  should  be  incon- 
venienced b}'  the  discontinuance  of  said  trains,  it  is  apparent 
that  at  most  it  is  an  inconvenience  and  could  cause  only  a 
trifling  loss  to  any  one,  and  that  the  orders  of  the  IMississippi 
Railroad  Commission,  which  seek  to  require  complainant  to 
avoid  inconvenience  and  trifling  loss  to  such  persons  as  desire 
to  travel  in  the  state  of  Mississippi  on  complainant's  road,  at 
the  cost  to  complainant  of  the  many  thousand  dollars  which 
it  will  be  required  to  expend,  without  any  return,  in  the  oper- 
ation of  said  trains,  is  void  for  unreasonableness  and  deprives 
complainant  of  the  equal  protection  of  the  laws  and  of  its 
property,  without  due  process  of  law,  and  especially  is  this 
true  in  the  present  condition  of  complainant's  business  and 
income,  as  is  set  out  hereinabove. 

VIII.  Each  of  the  many  economies  which  this  complainant 
had  adopted,  and  is  prepared  to  adopt,  will  bear  more  or  less 
heavily  upon  various  individuals,  various  employes,  and  vari- 
ous localities.  It  is  necessary  in  order  that  there  shall  be  no 
discrimination  between  these  various  individuals,  employes 
and  localities  that  the  reduction  of  expenses  shall  be  equitably 
distributed,  and  said  distribution  can  be  made  only  upon  a 
comprehensive  view  of  this  complainant's  entire  business,  and 
of  the  needs  of  the  people  served  by  its  entire  system.  If  the 
power  of  determining  the  means  to  be  employed  by  complain- 
ant to  bring  its  expenses  within  its  income  shall  be  taken  from 
the  complainant  and  lodged  in  the  commission,  the  complain- 


744  SUTIS    IN    EQUITY. 

ant's  ability  to  serve  the  public  will  be  seriously  impaired,  and 
the  attempt  so  to  do  deprives  this  complainant  of  its  property 
without  due  process  of  law,  contrary  to  the  fourteenth  amend- 
ment of  the  Constitution  of  the  United  States,  and  contrary 
to  the  constitution  of  Mississippi. 

IX.  Complainant  further  avers  that  by  virtue  of  Section 
3964  of  the  Revised  Statutes  of  the  United  States,  complain- 
ant's line  is  constituted  a  post  road,  and  is  required  by  the 
laws  and  contracts  with  the  government  of  the  United  States 
to  carry  the  mails  and  troops  and  munitions  of  war  in  inter- 
state commerce ;  that  by  an  act  of  Congress  of  the  United 
States,  approved  the  20th  day  of  September,  1850,  entitled, 
"An  act  granting  the  right  of  way,  and  making  the  grant  of 
land  to  the  states  of  Illinois,  Mississippi,  and  Alabama,  in  the 
aid  of  the  construction  of  a  railroad  from  Chicago  to  Mobile," 
certain  lands  were  donated  to  the  states  of  Alabama  and  Mis- 
sissippi to  aid  in  the  construction  of  a  railroad  from  Mobile, 
Alabama,  to  a  point  near  the  mouth  of  the  Ohio  river;  and 
by  appropriate  acts  of  the  legislatures  of  Mississippi  and  Ala- 
bama granted  said  land  to  this  complainant.  By  Section  4 
of  the  act  of  Congress,  approved  September  20,  1850,  this 
complainant,  the  beneficiary  under  that  act,  is  made  a  public 
highway  for  the  use  of  the  United  States  government,  with- 
out charge,  for  the  transportation  of  troops  and  property  of 
the  United  States,  and  complainant  is  required  thereunder  to 
carry  the  mails  at  such  price  as  Congress  may  fix. 

Complainant  says  that  while  states  have  power  to  make 
reasonable  regulations  governing  the  intrastate  business  of 
interstate  railroads,  the  order  of  the  railroad  commission  in 
this  case,  which,  if  enforced,  will  endanger  the  life  of  this 
complainant,  by  reason  of  its  lack  of  necessary  income  to  meet 
the  expense,  is  void  as  a  burden  upon  interstate  commerce 
and  upon  this  instrument  of  the  government  of  the  United 
States  for  the  carrying  of  its  troops,  property  and  material, 
the  effect  upon  interstate  commerce  and  this  complainant,  as 
an  instrument  of  the  United  States  government,  being  not 
merely  indirect  or  incidental,  but  being  an  absolute  destruc- 


BILLS    OF    SPECIAL    CASES.  745 

tion  of  complainant's  ability  to  operate  its  road,  in  violation 
of  the  commerce  clause  of  the  Constitution  of  the  United 
States. 

X.  Complainant  avers  that  the  railroad  commission  has  no 
power  under  statutes  or  otherwise  to  regulate  the  number  of 
trains  run  by  railroads,  and  the  said  orders  are  void  for  that 
reason ;  yet  the  orders  ^vere  made  under  the  general  power 
granted  the  commission  by  the  state  to  make  certain  orders 
regulating  railroads;  and  the  commission  and  the  attorney 
general  are  empowered  by  law  to  bring  suits  for  penalties  for 
violation  of  the  commission's  orders  and  to  seek  to  compel  by 
mandamus  and  injunction  obedience  to  such  orders;  and  the 
state  of  Mississippi  leaves  it  to  the  commission  and  attorney 
general  to  determine  w^hether  such  suits  shall  be  brought ;  and 
complainant  is  informed  and  verily  believes  that  the  commis- 
sion and  attorney  general  have,  in  the  exercise  of  the  power 
of  determining  such  matters  granted  them  by  the  state,  deter- 
mined and  are  preparing  to  file  suits  against  complainant  for 
penalties  in  case  complainant  disobeys  said  orders,  and  will 
file  other  suits  to  compel  complainant  by  injunction  and  man- 
damus to  obey  said  void  orders.  The  said  suits  will,  if  the 
commission  and  the  attorney  general  are  not  restrained,  harass 
and  annoy  the  complainant  and  will  cost  complainant  con- 
siderable sums  of  money  to  defend,  and  complainant  believes 
and  so  avers  that  they  will,  if  they  can,  obtain  a  mandatory 
injunction  requiring  the  reinstatement  and  operation  of  the 
trains  which  have  been  discontinued,  which  in  the  present 
condition  of  complainant's  finances  will  be  ruinous. 

Complainant  avers  that  said  six  orders  of  the  railroad  com- 
mission, on  the  fact  thereof,  provide  that  complainant  shall 
be  penalized  in  the  sum  of  $500  in  each  case  for  each  day's 
violation  of  said  orders,  the  total  penalty  per  day  being 
$3,000;  and  that  said  penalties,  while  believed  to  be  not  legal, 
are  so  excessive  as  for  the  risk  of  having  to  pay  the  amount 
thereof,  to  intimidate  complainant,  and  since  the  ordinary 
method  of  testing  said  orders  would  subject  the  complainant 
to  the  risk  of  said  enormous  penalties,  if  in  error,  the  said 


746  SUTIS    IN    EQUITY. 

orclers  deprive  complainant  of  its  property  without  due  proc- 
ess of  law,  contrary  to  the  fourteenth  amendment  of  the  Con- 
stitution of  the  United  States,  and  complainant  is  without 
remedy  except  in  this  court  of  equity. 

XI.  Complainant  avers  that  said  orders  fixing  the  termini 
of  certain  said  trains  are  unreasonable,  illegal  and  unwar- 
ranted interference  with  the  management  of  this  company's 
business,  and  will  place  a  heavy  burden  upon  this  complain- 
ant, in  that  the  short  distance  which  certain  of  said  trains 
will  operate,  namely,  52  miles,  between  Meridian  and  \\''aynes- 
boro,  Mississippi,  will  require  complainant  to  expend  a  con- 
siderable sum  of  money  each  month  in  payment  of  wages  of 
employes,  who  have  a  contract  for  a  minimum  mileage  per 
day  and  per  trip,  this  being  true  even  if  the  same  crews  make 
a  round  trip  between  certain  of  the  termini  each  day.  Said 
orders,  therefore,  deprive  this  complainant  of  its  property 
without  due  process  of  law,  contrary  to  the  Constitution  of 
the  United  States. 

XII.  Complainant  avers  that  the  railroad  commission  of 
Mississippi  issued  to  it  but  one  citation  in  this  case,  heard  the 
testimony  as  to  all  the  trains  at  one  time,  all  of  the  testimony 
applying  to  each  of  the  trains  as  applicable,  and  that  while 
the  commission  issued  a  separate  order  as  to  each  train,  the 
said  orders  are  but  parts  of  one  decision  on  one  subject- 
matter  in  one  suit  between  the  same  parties. 

And  complainant  avers  that  if  the  said  orders  shall  be  en- 
forced against  it  in  this  case,  complainant  will  be  irreparably 
injured,  because,  so  far  as  can  be  foreseen,  complainant  will 
have  the  greatest  difficulty  in  meeting  its  obligations  and  run- 
ning its  road,  even  if  it  is  allowed  to  economize  in  every  par- 
ticular which  is  reasonably  possible,  and  if  complainant's 
economies  in  the  reduction  of  its  passenger  train  service  are 
not  permitted  to  be  put  in  effect,  complainant  can  not  con- 
tinue to  operate  its  road,  and  complainant  is  without  any  ade- 
quate relief  except  in  a  court  of  equity. 


BILLS   OF   SPECIAL   CASES.  747 

Prayer. 

The  premises  considered,  complainant  prays  that  proper 
process  issue,  making  parties  against  whom  this  bill  is  filed 
parties  to  this  suit.  And  that  in  view  of  the  irreparable  in- 
jury which  is  about  to  be  inflicted  upon  complainant,  and  the 
multiplicity  of  penalty  suits  to  which  complainant  will  become 
subjected  but  for  the  restraining  process  of  this  court,  that  a 
restraining  order  at  once  issue  enjoining  the  Mississippi  Rail- 
road Commission,  and  the  members  thereof,  and  Ross  A. 
Collins,  attorney  general,  from  enforcing  or  taking  any  steps 
to  enforce  compliance  with  those  certain  six  orders  of  the 
railroad  commission  of  Mississippi,  or  any  of  them,  issued 
October  7,  1914,  hereinbefore  referred  to;  and  from  taking 
any  steps  whatsoever  to  collect  the*  penalties  provided  in  any 
and  all  of  said  six  orders,  and  further  enjoining  any  and  all 
other  parties  from  proceeding  against  complainant  under  any 
and  all  of  said  orders  of  the  railroad  commission  of  October 
7,  1914.(1) 

Complainant  further  prays  that  upon  a  hearing  for  a  tem- 
porary injunction,  a  temporary  injunction  of  like  character 
issue,  and  that  upon  a  final  hearing  said  temporary  injunction 
be  made  permanent. 

Complainant  prays  for  all  sucli  other,  further,  general  and 
special  relief  as  in  equity  it  may  be  entitled  to. 

This  is  the  first  application  for  injunction  in  this  cause. 
Mobile  &  Ohio  Railroad  Company, 
By  S.  R.  Prince,  General  Counsel. 

Carl  Fox  and  J.  M.  Boone, 

Solicitors  for  Complainant. 

(1)  This    proceeding    is    governed    by    the    provisions    of    Federal 
Judicial  Code,  Sec.  266,  annotated  below,  under  Injunctions. 


748  SUITS'  IN   EQUITY. 

No.  477. 

Suit  by  Trustee  Against  Bankrupts. 

[Caption.] 

Edwin  C.  Day,  of  Chicago,  Illinois,  and  a  citizen  of  the 
state  of  Illinois,  brings  this  his  bill  against  C.  H,  Seegmiller, 
of  Chicago  and  a  citizen  of  the  state  of  Illinois,  and  Fred  J. 
Dennis,  of  Chicago  and  a  citizen  of  the  state  of  Illinois,  under 
the  provisions  of  section  23,  act  of  July  1,  1898;  amended 
February  5,  1903,  and  January  25,  1910. 

And  thereupon  plaintiff  complains  and  says  that  on  October 
3,  1913,  a  petition  was  filed  in  this  court  praying  that  Chicago 
Folding  Box  Company,  a  corporation,  be  declared  a  bank- 
rupt; that  on  October  24,-1913,  said  corporation  was  adjudi- 
cated a  bankrupt,  and  thereafter,  to-wit,  on  November  21, 
1913,  plaintiff  was  appointed  trustee  of  the  Chicago  Folding 
Box  Company,  bankrupt ;  that  C.  H.  Seegmiller  is  and  has 
been  since  January  1,  A.  D.  1905,  a  director  and  secretary 
of  the  above  company;  that  Fred  J.  Dennis  is  and  has  been 
since  the  year  1889  a  director  of  said  company,  and  since 
January  1,  A.  D.  1905,  has  been  president  of  said  company; 
that  said  corporation  was  organized  and  exists  under  the  laws 
of  the  state  of  Illinois  and  has  its  place  of  business  in  the 
city  of  Chicago;  that  on  September  1,  1912,  the  corporation 
was  capitalized  at  seventy-five  thousand  (75,000)  dollars; 
that  of  this  amount  six  hundred  (600)  shares,  par  value  one 
hundred  (100)  dollars,  of  paid-up  stock  had  been  issued:  that 
four  hundred  and  seventy-three  (473)  shares  were  held  by 
the  said  Fred  J.  Dennis  and  one  hundred  and  thirty-seven 
(137)  shares  were  held  by  the  said  C.  H.  Seegmiller:  that 
on  September  4,  1912,  the  capitalization  of  the  company  was 
increased  to  one  hundred  and  fifty  thousand  (150,000)  dol- 
lars, the  shares  of  stock  being  one  hundred  (100)  dollars 
par  value;  that  of  this  amount  seven  hundred  and  ten  (710) 
shares  have  been  issued  to  and  are  now  held  by  Fred  J.  Den- 
nis  as   paid-up   stock,    and    one    hundred   and    ninety    (190) 


BILLS    OF   SPECIAL   CASES.  749 

shares  have  been  issued  to  and  are  held  by  C.  H.  Seegmiller 
as  paid-up  stock. 

Plaintiff  further  shows  that  the  claims  filed  ag^ainst  the 
above  bankrupt  estate  exceed  one  hundred  thousand  (100,- 
000)  dollars;  that  the  property  of  the  bankrupt  has  been  in- 
ventoried heretofore  under  the  orders  of  this  court  and  that 
the  same  has  been  appraised  by  appraisers  appointed  by  the 
court  at  thirty-six  thousand  seven  hundred  and  sixty-six  dol- 
lars and  nine  cents  ($36,766.09)  ;  that  upon  a  forced  sale  the 
said  property  and  assets  of  the  bankrupt  will  bring  far  short 
of  this  sum ;  that  said  assets  and  property  have  been  held 
under  the  orders  of  the  court  for  sale  by  the  trustee  as  a 
going  concern ;  that  said  trustee  has  endeavored  to  obtain  bids 
for  the  same  and  that  the  best  offer  so  far  received  is  nine 
thousand  (9,000)  dollars;  that  upon  the  settlement  of  the 
estate,  the  creditors  will  receive  not  to  exceed  five  per  cent, 
in  dividends;  that  during  the  period  immediately  preceding" 
bankruptcy,  to-wit,  from  August  31,  1912,  until  October  3, 
1913,  the  said  Fred  J.  Dennis  and  C.  H.  Seegmiller  paid  out 
to  themselves  large  amounts  as  pretended  dividends,  without 
warrant  of  law ;  that  during  said  period  said  respondents,  act- 
ing as  officers  of  the  bankrupt  corporation,  purchased  large 
amounts  of  strawboard  and  other  raw  materials  used  in  the 
business  of  the  company  upon  credit ;  that  the  same  were 
manufactured  by  them  into  folding  boxes  and  sold  for  cash ; 
that  the  business  was  operated  at  a  loss :  that  instead  of  pay- 
ing debts  incurred  for  material,  said  respondents  herein  ap- 
propriated the  proceeds  of  sales  to  their  own  use,  under  the 
simulated  form  of  dividends;  that  the  liabilities  of  the  cor- 
poration represented  by  the  claims  now  filed  were  incurred  in 
this  manner;  that  there  were  no  surpluses  out  of  which  to 
declare  dividends ;  that  the  same  were  paid  out  of  the  capital 
stock  of  the  corporation,  and  that  it  is  to  the  interest  of  this 
estate  to  recover  all  said  moneys  so  paid. 

Plaintiff  further  shows  that  during  the  period  of  five  and 
one-half  years  prior  to  bankruptcy,  the  said  Seegmiller  and 
Dennis,  as  officers  of  said  corporation,   represented  that  the 


750  SUITS   IN    EQUITY. 

business  of  the  company  was  being  carried  on  at  a  profit,  and 
that  large  surpluses  were  being  accumulated;  that  by  these 
representations  and  by  fraudulent  financial  statements,  the 
said  Seegmiller  and  Dennis  contrived  to  obtain  credit  in  large 
amounts ;  that  in  fact  said  business  was  not  run  at  a  profit ; 
that  the  actual  operating  losses  for  the  year  and  eight  months 
immediately  preceding  bankruptcy  aggregated  twenty-six 
thousand  thirty- four  dollars  and  eighty-nine  cents  ($26,034.- 
89)  ;  that  in  the  face  of  said  losses  said  respondents  declared 
dividends  during  this  period  aggregating  eighty-eight  thousand 
eight  hundred  dollars  ($88,800)  ;  that  the  dividends  and  losses 
together  aggregated  one  hundred  and  fourteen  thousand  eight 
hundred  and  thirty-four  dollars  and  eighty-nine  cents  ($114,- 
834.89)  ;  that  in  order  to  conceal  the  actual  losses  during  the 
years  1909,  1910,  1911  and  the  first  nine  months  of  1912,  the 
said  Dennis  and  Seegmiller  did  not  credit  themselves  on  the 
books  of  the  company  with  salary;  that  nevertheless  during 
said  years  they  drew  large  sums  of  money;  that  now  said 
Dennis  and  Seegmiller  claim  that  they  are  entitled  to  said 
sums  as  back  wages ;  that  it  was  due  to  representations  that 
the  business  was  operated  at  a  profit,  and  not  at  a  loss,  that 
credit  was  obtained ;  that  said  Seegmiller  and  Dennis  are  not 
now  entitled  as  against  the  creditors  of  the  bankrupt  corpora- 
tion to  claim  said  sums  as  wages. 

Plaintifif  further  shows  that  the  dividends  complained  of 
herein  were  declared  by  the  said  Fred  J.  Dennis  and  C.  H. 
Seegmiller,  together  with  John  L.  Hartke,  a  nominal  third 
director,  at  the  time  and  in  the  amounts  as  follows: 

On  September  23,  1912 $34,500.00 

On  September  23,  1912 30,000.00 

On  May  2,  1913 10,800.00 

On  July  29,  1913 13,500.00 

That  the  pretended  surpluses  out  of  which  said  dividends 
were  declared  were  fictitious  and  fraudulent  and  were  created 
by  the  following  devices : 


BILLS   OF  SPECIAL   CASES.  751 

(a)  By  increasing  the  valuation  of  the  capital  assets  on 
August  31,  1912,  from  $61,835.58  to  $143,747.92,  without 
any  reasonable  grounds  for  so  doing,  and  in  the  face  of  large 
operating  losses. 

(b)  By  crediting  the  corporation  on  January  31,  1913, 
with  $11,468.08,  being  a  pretended  claim  against  American 
Box  Board  Company  for  injury  to  loss  and  profit  and  good 
will  due  to  the  alleged  failure  of  American  Box  Board  Com- 
pany to  complete  a  contract,  which  claim  was  instituted  to 
offset  the  debt  of  said  bankrupt  corporation  to  American  Box 
Board  Company  for  raw  materials  amounting  to  $6,817.61. 

(c)  By  crediting  the  company  with  the  $8,310.07,  which 
had  previously  been  entered  as  a  liability  to  Beloit  Box  Board 
Company  for  raw  material,  and  by  carrying  the  same  as  a 
profit  while  judgTnent  against  said  bankrupt  company  in  favor 
of  Beloit  Box  Board  Company  for  $9,762.50  in  the  United 
States  circuit  court  remained  unsatisfied. 

(d)  By  crediting  the  corporation  with  four  thousand 
(4,000)  dollars  as  unearned  profits,  based  on  unfilled  orders. 

(e)  By  not  charging  ofif  uncollectible  accounts. 

(f)  By  crediting  amounts  spent  in  operating  as  permanent 
additions  to  the  capital  assets. 

is)  By  neglecting  in  the  twenty-five  years  of  operation  to 
charge  oflf  depreciation  in  machinery. 

(h)  By  not  crediting  themselves  with  salary,  although 
drawing  large  amounts  on  account. 

Plaintiff  further  shows  that  on  September  23  and  on  Sep- 
tember 24,  1913,  there  was  in  the  treasury  of  the  Chicago 
Folding  Box  Company  no  accumulated  surplus ;  that  the  decla- 
ration of  the  dividend  of  September  23,  $34,500,  and  the 
dividend  of  September  24,  $30,000,  diminished  the  capital 
stock  of  the  company  in  these  amounts  and  was  void  as  to 
the  creditors  and  plaintiff  herein ;  that  the  $34,000  was  drawn 
out  partly  in  cash  and  was  partly  applied  in  cancelling  the  in- 
debtedness of  the  said  Fred  J.  Dennis  and  C.  H.  Seegmiller  to 
the  corporation,  caused  by  overdrafts  at  various  times  prior 
thereto;  that  said  respondents  purported  to  turn  back  thirty 


752  SUTIS    IN    EQUITY. 

thousand  (30,000)  dollars  of  the  amount  in  cash  into  the 
treasury  in  purchase  of  additional  stock  of  the  corporation ; 
that  the  declaration  of  dividends  on  May  2,  1913,  of  $10,000 
and  the  declaration  of  dividends  on  July  29,  1913,  of  $13,500 
were  made  when  there  was  no  surplus  in  the  treasury  and.  in 
diminution  of  the  capital  stock ;  that  a  part  of  said  dividends 
so  declared  was  paid  to  the  said  Fred  J.  Dennis  and  C.  H, 
Seegmiller  when  the  company  was  insolvent,  and  within  four 
months  of  the  filing  of  petition  in  bankruptcy;  that  the  finan- 
cial condition  of  the  company  was  at  all  times  known  to  the 
said  Seegmiller  and  Dennis;  that  a  part  of  said  dividends, 
to-wit,  $19,965.07,  is  still  unpaid ;  that  claims  for  said  unpaid 
portion  have  been  filed  by  the  said  Seegmiller  and  Dennis 
against  the  bankrupt  estate ;  that  the  amounts  paid  during  the 
four  months  immediately  preceding  the  filing  of  the  petition 
in  bankruptcy  and  while  insolvent  were  $1,883.36,  drawn  by 
F.  J.  Dennis  in  excess  of  salary,  and  $1,156  by  C.  H.  Seeg- 
miller in  excess  of  salary;  that  not  only  was  the  capital  stock 
of  the  company  diminished  to  this  extent  by  these  amounts, 
but  the  same  were  void  as  to  creditors  and  as  to  plaintiff,  the 
same  being  preferences,  and  the  said  Seegmiller  and  Dennis 
having  had  reasonable  grounds  to  know,  at  the  time  they 
were  made,  that  these  payments  would  be  preferences  and 
give  them  a  larger  percentage  of  these  claims  than  other 
creditors;  that  the  amounts  actually  drawn  in  cash  as  pre- 
tended dividends,  prior  to  the  four  months'  period,  were 
$21,262.73,  by  the  said  Fred  J.  Dennis,  and  $8,232.84  by  the 
said  Charles  H.  Seegmiller. 

Plaintifif  further  shows  that  the  said  C.  H.  Seegmiller,  on 
September  24,  subscribed  for  sixty-three  (63)  shares  of  stock- 
in  said  corporation,  and  the  said  Fred  J.  Dennis  subscribed 
for  two  hundred  and  thirty-.seven  (237)  shares  of  stock;  that 
the  said  C.  H.  Seegmiller  and  said  Fred  J.  Dennis  have  paid 
nothing  whatever  for  said  stock ;  that  the  said  Seegmiller  and 
Dennis  pretended  to  pay  therefor  thirty  thousand  (30,000) 
dollars  in  cash,  par  value  of  said  stock ;  that  their  respective 
claims  against  the  corporation  for  dividends  declared  Septem- 


BILLS    OF    SPECIAL    CASES.  753 

ber  24  were  surrendered  in  lieu  of  cash ;  that  said  claims  for 
dividends  were  null  and  void  and  utterly  valueless;  that  said 
Seegmiller  owes  to  plaintiflf,  as  trustee,  six  thousand  three 
hundred  (6,300)  dollars  on  said  subscription,  and  the  said 
Fred  J.  Dennis  owes  to  plaintiff  twenty-three  thousand  seven 
hundred  (23,700)  dollars  on  the  said  subscription. 

Wherefore  plaintiff  prays  that  said  pretended  dividends  be 
decreed  to  have  been  declared  in  fraud  upon  the  creditors  and 
upon  plaintiff  herein ;  that  the  said  Fred  J.  Dennis  be  required 
to  surrender  the  $1,833.36  drawn  within  four  months  of  bank- 
ruptcy and  the  $21,262.73  within  one  year  and  a  half  prior 
to  •  bankruptcy  and  be  required  to  pay  plaintiff  the  $23,700 
still  due  and  unpaid  on  his  subscription  to  the  capital  stock  of 
said  corporation;  and  that  the  said  C.  H.  Seegmiller  be  or- 
dered to  repay  to  plaintiff  the  $1,156  taken  within  four 
months  of  bankruptcy  and  the  $8,232.84  taken  within  one 
year  and  a  half  prior  to  bankruptcy,  and  $6,300,  his  unpaid 
subscription  to  the  capital  stock  of  said  corporation. 

Plaintiff  also  prays  for  such  other  and  further  relief  as  the 
nature  of  the  case  may  require  and  the  court  may  deem 
proper  in  the  premises. 

To  the  end  that  each  of  said  defendants  may,  if  he  can, 
show  why  your  petitioner  should  not  have  the  relief  prayed 
for  and  may,  according  to  his  best  and  utmost  knowledge, 
remembrance  and  belief,  full,  true,  correct  and  perfect  answer 
make  to  each  and  all  matters  in  this  petition  alle^'ed  and  con- 
tained, and  that  as  fully  as  if  the  same  here  repeated  para- 
graph by  paragraph,  and  he  were  thereunto  specially  and 
severally  interrogated,  but  not  under  oath,  the  answer  under 
oath  being  hereby  waived ;  and  may  it  please  your  honors  to 
grant  to  plaintiff  a  writ  of  subpoena,  issued  out  of  and  under 
the  seal  of  this  court,  directed  to  said  defendants  and  each  of 
them  commanding  them  and  each  of  them  that  on  a  day 
certain  and  under  a  certain  penalty  to  be  therein  described,  to 
appear  before  your  honors  in  this  court  and  then  and  there 
full,  true,  direct  and  perfect  answer  make  to  all  and  singular 
the  premises  herein  set  forth,  and  stand  by,  perform  and  abide 


754  SUTIS    IN    EQUITY. 

by  said  further  order  or  decree  as  to  your  honors  shall  seem 
meet;  and  plaintiflF  will  ever  pray. (1) 

Edwin  C.  Day,  Trustee. 

Adams,  Follansbee,  Hawley  &  Shorey, 
Solicitors  for  said  Trustee. 

Mitchell  D.  Follansbee  and 
William  H.  Long, 
Of  Counsel. 

(1)  All  of  the  last  paragraph  in  this  Bill  of  Complaint  could  be  omitted 
under  the  present  equity  rules ;  it  merely  illustrates  the  tendency  of  the 
bar  to  follow  the  old  forms  so  long  as  not  forbidden.  There  is  a  certain 
impressiveness  and  sonorousness  about  the  verbose  pleadings  that  con- 
tinue to  appeal. 


No.  478. 

Bill  by  the  United  States  for  Decree  of  No  Interest  Where 
Land  Wrongfully  Patented. 
[Caption.] 

The  United  States  of  America,  by  direction  of  James  C. 
McReynolds,  its  attorney  general,  brings  this  its  bill  of  com- 
plaint against  Nellie  N.  Joyce,  R.  W.  Nichols,  whose  true  first 
name  is  to  complainant  unknown ;  Edward  L.  Boyle  and  John 
Helmer,  all  citizens  and  residents  of  the  state  and  district  of 
Minnesota,  and  thereupon  plaintiff,  complaining  of  the  above- 
named  defendants,  alleges  and  shows  unto  your  honors : 

I.  That  in  the  month  of  April,  1892,  and  ever  since,  the 
following  described  land,  situate  in  the  county  of  St.  Louis, 
state  of  Minnesota,  to-wit,  lots  four  (4),  five  (5)  and  six 
(6),  section  twenty-one  (21),  township  sixty-three  (63) 
north,  range  eighteen  (18)  west,  the  same  being  in  the  Du- 
luth  land  district  in  said  state,  had  been  and  is  the  propertv 
of  the  complainant  in  fee  simple,  and  in  said  month  of  April, 
1892,  was-  a  part  of  the  unappropriated  public  domain  of  the 
United  States. 

IL  That  one  John  Wakemup,  Sr.,  was  a  Chippewa  Tndiati, 
a  member  of  the  band  or  tribe  of  Chippewa  Indians  residing 


BILLS   OF   SPECIAL   CASES.  755 

in  the  state  of  Minnesota,  a  ward  of  the  government  and  in 
charge  of  an  Indian  agent. 

III.  That  the  act  of  Congress  of  July  4,  1884  (23  Stats, 
at  Large,  76-86),  entitled,  "An  act  making  appropriations  for 
the  current  and  contingent  expenses  of  the  Indian  depart- 
ment, and  for  fulfilling  treaty  stipulations  with  various  Indian 
tribes  for  the  year  ending  June  30,  1885,  and  for  other  pur- 
poses," contains  the  following  provision,  to-wit : 

"That  such  Indians  as  may  be  now  located  on  public  lands, 
or  as  may.  under  the  direction  of  the  secretary  of  the  interior, 
or  otherwise,  hereafter,  so  located,  may  avail  themselves  of 
the  provisions  of  the  homestead  laws  as  fully  and  to  the  same 
extent  as  may  now  be  done  by  citizens  of  the  United  States; 
and  to  aid  such  Indians  in  making  selections  of  homesteads 
and  necessary  proofs  at  the  proper  land  offices,  one  thousand 
dollars,  or  so  much  thereof  as  may  be  necessary,  is  hereby 
appropriated,  but  no  fees  or  commissions  shall  be  charged  on 
account  of  such  entries  or  proofs.  All  patents  therefor  shall 
be  of  legal  eflfect,  and  declare  that  the  United  States  does  and 
will  hold  the  lands  thus  entered  for  the  period  of  twenty-five 
years,  in  trust  for  the  sole  use  and  benefit  of  the  Indian  by 
whom  such  entry  shall  have  been  made,  or  in  case  of  his  de- 
cease, of  his  widow  and  heirs  according  to  the  laws  of  the 
state  or  territory  where  such  land  is  located,  and  that  at  the 
expiration  of  said  period  the  United  States  shall  convey  the 
same  by  patent  to  said  Indian,  or  his  widow  and  heirs  as 
aforesaid,  in  fee,  discharged  of  said  trust  and  free  of  all 
charge  or  incumbrance  whatsoever.     *    *     *" 

IV.  That  pursuant  to  said  act  of  July  4,  1884.  and  to  avail 
himself  of  the  rights,  benefits  and  privileges  therein  contained 
for  and  in  behalf  of  persons  of  Indian  blood,  said  John 
Wakemup,  Sr.,  under  date  of  April  16,  1892,  made  an  origi- 
nal homestead  entry  No.  6588  at  the  Duluth  land  office,  Min- 
nesota, of  the  above  described  land.  The  said  entryman  hav- 
ing died  in  the  meantime,  his  heirs  in  due  course  on  Novem- 
ber 25,  1903,  under  and  pursuant  to  said  act  of  Congress, 
submitted  to  the   proper  officers   of  said   Dnluth  land   office 


756  SUTIS   IN    EQUITY. 

final  proofs  to  establish  the  entry  of  said  land  by  said  Indian 
and  to  perfect  their  rights  as  to  the  heirs  of  said  deceased 
Indian  to  a  patent,  as  provided  by  said  act  of  Congress,  for 
the  above  described  land.  The  final  proofs  so  submitted  were 
duly  accepted  and  approved  by  the  proper  officers  of  said  land 
office,  and  in  conformity  to  the  practice  prevailing  in  the  de- 
partment of  the  interior  of  the  complainant,  said  officers,  un- 
der date  of  Alay  24,  1904,  issued  final  certificate  No.  5629  to 
the  heirs  at  law  of  said  deceased  Indian,  evidencing  their 
right  to  the  patent,  as  aforesaid.  That  the  executive  officers 
of  complainant,  under  date  of  June  16,  1905,  issued  to  said 
heirs  at  law  a  patent  for  said  land  which  purported  to  be  a 
patent  in  fee,  executed  pursuant  to  the  act  of  Congress  of 
May  20,  1862,  and  acts  supplemental  thereto.  In  issuing  said 
patent  in  manner  and  form  as  aforesaid,  the  officers  of  com- 
plainant wholly  disregarded  the  above-quoted  provision  of  the 
act  of  July  4.  1884.  in  that  they  failed  and  neglected  to  em- 
body in  said  patent  the  conditions,  reservations  and  limita- 
tions upon  the  title  to  be  granted  as  in  said  act  specified,  and 
which  they  are  commanded  to  incorporate  in  all  patents  issued 
under  said  act  of  Congress,  and  complainant  avers  that  said 
officers  issued  said  patent  inadvertently,  erroneously.  M^rong- 
fully  and  without  authority  of  law.  and  that  the  same  is  void 
and  of  no  eflFect.  and  that  the  executive  officers  who  issued 
said  patent  could  not  and  had  not  the  power  to  dispense  with 
the  provisions  of  said  act  of  Congress,  as  aforesaid. 

V.  That  the  said  defendants,  and  each  of  them,  claim  an 
interest  in  said  lands  adverse  to  the  title  of  complainant,  but 
that  the  nature  of  said  interest  claimed  by  defendants  is  to 
complainant  unknown ;  that  the  defendants'  claims  are.  and 
each  of  them  is.  without  any  right  whatsoever,  and  that  none 
of  the  defendants  has  any  estate,  right,  title  in  or  lien  upon 
said  lands  or  any  part  thereof. 

In  consideration  whereof,  and  in  as  much  as  the  complain- 
ant can  have  no  adequate  relief  except  in  this  court,  and  to 
the  end,  therefore,  that  the  defendants  may,  if  they  can.  show 
why  the  complainant  should  not  have  the  relief  prayed,  and 


BILLS    OF   SPECIAL   CASES.  .757 

may  make  a  full  disclosure  and  discovery  of  all  the  matters 
aforesaid,  and,  according  to  the  best  and  utmost  of  their 
remembrance,  knowledge,  information  and  belief,  full,  true, 
direct  and  perfect  ansv/er  make  to  the  matters  hereinbefore 
stated  and  charged ;  but  not  under  oath,  an  answer  under  oath 
being  expressly  waived. 

And  complainant  prays  that  your  honors  may  decree  that 
said  defendants,  and  each  of  them,  have  no  estate  or  interest 
whatsoever  in  or  to  said  lands  or  premises,  and  that  the  title 
of  the  complainant  is  good  and  valid,  save  and  except  any  and 
all  rights  acquired  by  the  patentees  under  the  aforesaid  act  of 
Congress,  and  that  the  said  defendants,  and  each  of  them,  be 
forever  enjoined  and  restrained  from  asserting  any  claim 
■whatsoever  in  and  to  said  lands  and  premises  adverse  to  the 
complainant,  and  for  such  other  and  further  relief  as  the 
equity  of  the  case  may  require  and  to  your  honors  may  seem 
meet. 

May  it  please  your  honors  to  grant  unto  the  complainant  a 
writ  of  subpoena  of  the  United  States  of  America,  directed 
to  the  said  Nellie  N.  Joyce.  R.  W.  Nichols.  Edward  L.  Boyle 
and  John  Helmer,  and  to  such  other  as  shall  in  the  discretion 
of  your  honors  appear  necessary  to  the  hearing  and  deter- 
mination of  this  cause,  commanding"  them  on  a  day  certain  to 
appear  and  answer  unto  this  bill  of  complaint :  and  to  abide 
and  perform  such  order  and  decree  in  the  premises  as  to  the 
court  shall  seem  proper  and  required  bv  the  principles  of 
equity  and  good  conscience.  ( 1 ") 

Charles  C.  Houpt, 
U.  S.  Attorney  and  Solicitor  for  Complainant. 

Endorsed :  Filed  in  the  district  court  on  November  18, 
1913. 

(1)  Foster's  Fed.  Prac.  5th  ed.,  p.  333,  note  31. 


758.  SUTIS   IN    EQUITY. 

No.  479. 

To  Decree  an  Alley  to  be  Private  Property,  to  Remove 
Obstructions,  and  to  Cancel  a  Deed  Thereto. 

[Caption.] 

The  plaintiff  states  as  follows : 

1.  That  he  is  a  citizen  of  the  United  States  and  a  resident 
of  the  District  of  Columbia,  and  sues  in  his  own  right. 

2.  The  defendants  are  husband  and  wife,  are  citizens  of  the 
United  States  and  residents  of  the  District  of  Columbia,  and 
are  sued  in  their  own  right. 

3.  Heretofore  and  prior  to  July  1,  1883,  the  title  to  block 
seven  (7)  in  Todd  and  Brown's  subdivision  of  tlie  tracts  of 
land  known  as  "Pleasant  Plains"  and  "Mount  Pleasant"  in 
the  county  of  Washington,  District  of  Columbia,  as  per  plat 
recorded  in  Liber  Levy  Court  No.  2,  folio  24,  of  the  records 
of  the  office  of  the  surveyor  of  the  District  of  Columbia,  was 
vested  in  Algeron  R.  McChesney  and  Henry  Bakersmith  as 
trustees  for  the  Enterprise  Building  Company,  an  unincor- 
porated association,  with  power  in  said  trustees  to  sell  and 
convey  in  their  discretion.  The  said  block  seven  (7)  fronted 
on  Georgia  avenue,  then  Seventh  street  road,  extending 
westerly  to  Sherman  avenue,  being  bounded  on  its  southern 
boundary  by  Irving  street,  then  Wallach  street.  A  diagram 
showing  the  parcels  into  which  lot  one  (1),  block  seven  (7), 
were  divided  and  the  alleyway  as  laid  out  for  their  accommoda- 
tion is  herewith  filed  and  made  part  hereof  as  plaintiff's  exhibit 
No.  1. 

4.  For  the  purpose  of  sale  said  block  seven  (7)  was  divided 
into  sundry  parcels,  and  one  of  the  lots  in  said  block,  to-wit, 
lot  one  (1),  was  divided  into  three  parcels,  two  of  those  par- 
cels fronting  on  Georgia  avenue,  immefliately  at  tlie  rear  of 
which  two  parcels  an  alleyway  ten  (10)  feet  wide  and  ex- 
tending from  the  north  line  of  Irving  street  northerly  fifty 
(50)  feet  to  the  north  line  of  said  lot  one  (1),  was  reserved 
for  the  benefit  of  the  parcels  into  which  said  lot  one  (1)  was 
subdivided.     On  the  west  side  of  said  ten  (10)  foot  alleyway 


BILLS   OF   SPECIAL   CASES.  759 

was  another  part  of  lot  one  (1)  fronting  forty  (40  feet  on 
Irving  street  by  a  depth  of  fifty  (50)  feet;  and  said  alleyway 
was  well  defined,  so  that  the  fact  of  its  existence  as  an  ease- 
ment appurtenant  to  said  parcels  of  lot  one  (1)  was  apparent 
to  any  person  dealing  with  said  portions  of  lot  one  (1). 

5.  By  deed  dated  June  13,  1883,  recorded  in  Liber  1048, 
folio  247,  of  the  land  records  of  the  District  of  Columbia,  said 
McChesney  and  Bakersmith,  trustees,  conveyed  to  John  W. 
Payne  the  following  described  portion  of  said  lot  one  (1)  in 
block  seven  (7),  together  with  the  alley  easement  hereinbefore 
referred  to : 

All  that  part  or  parcel  of  land  known  and  being  in  block 
seven  (7)  and  part  of  lot  one  (1)  of  Todd  and  Brown's  sub- 
division of  part  of  "Pleasant  Plains"  and  "Mount  Pleasant" 
as  by  recorded  subdivision  of  said  plat  William  Forsyth  sur- 
vey and  subdivision  April,  1868.  Beginning  for  the  part  of 
the  lot  twenty  (20)  feet  from  the  corner  of  Wallach  street 
and  Seventh  street  road,  along  Seventh  street  road,  north, 
then  one  hundred  (100)  feet  west  to  alley,  then  thirty  (30) 
feet  north,  then  one  hundred  (100)  feet  east,  then  thirty  (30) 
feet  south  along  Seventh  street  road  to  the  place  of  begin- 
ning, containing  3,000  feet  of  ground,  together  with  all  the 
improvements,  ways,  easements,  privileges,  rights,  appurte- 
nances and  hereditaments  to  the  same  belonging  or  in  any- 
wise appertaining. 

6.  By  deed  dated  September  6,  1883,  recorded  in  Liber 
1053,  folio  443,  of  said  land  records,  said  John  W.  Payne 
and  wife  conveyed  the  last  aforesaid  part  of  lot  one  (1)  in 
block  seven  (7),  and  said  alley  easement,  to  the  plaintiflf, 
James  B.  Gallagher,  the  description  in  said  deed  reading  as 
follows : 

Part  of  lot  one  (1)  in  block  seven  (7),  in  Todd  and 
Brown's  recorded  subdivision  of  "Pleasant  Plains"  and 
"Mount  Pleasant,"  being  the  north  thirty  (30)  feet  of  said 
lot  one  (1)  by  the  depth  of  one  hundred  (100)  feet.  Begin- 
ning for  the  same  twenty  (20)  feet  north  from  the  southeast 
corner  of  said  lot  and  running  thence  north  along  the  line  of 


760  SUTIS    IN    EQUITY. 

Seventh  street  road  thirty  (30)  feet,  thence  west  one  hundred 
(100)  feet  to  an  alley,  thence  south  along  said  alley  thirty 
(30)  feet,  thence  east  one  hundred  (100)  feet  to  the  place 
of  beginning. 

7.  Upon  the  acquisition  of  the  title  to  said  last-mentioned 
part  of  lot  one  (1),  block  seven  (7),  and  said  alley  easement, 
said  Gallagher  built  a  dwelling  house  on  the  front  part  of  said 
lot.  and  in  the  rear  thereof  erected  a  shed  having  a  door  or 
gate  running  out  into  said  alleyway. 

8.  After  the  said  dwelling  house  had  been  completed,  and 
by  deed  dated  November  4,  1886,  recorded  in  Liber  No.  1211, 
folio  340,  of  said  land  records,  the  defendant,  Edward  O. 
Scaggs.  acquired  by  purchase  that  part  of  said  lot  one  (1). 
block  seven  (7),  along  the  west  of  said  alleyway,  the  descrip- 
tion in  said  deed  reading  as  follows : 

Part  of  lot  one  (1),  block  seven  (7),  in  Todd  and  Brown's 
subdivision  of  "Mount  Pleasant"  and  "Pleasant  Plains"  and 
duly  recorded  in  the  land  records  for  said  district.  Beginning 
for  the  same  one  hundred  and  ten  (110)  feet  from  the  north- 
west corner  of  Seventh  street  road  and  Wallach  street,  and 
running  thence  north  fifty  (50)  feet,  thence  west  forty-one 
and  50/100  feet,  thence  south  fifty  (50)  feet,  thence  east 
forty-one  and  50/100  feet  to  the  place  of  beginning. 

9.  After  the  conveyance  aforesaid  to  said  Scaggs  he  erected 
a  dwelling  upon  said  part  of  said  lot  so  purchased  by  him,  and 
in  so  building  upon  said  part  of  said  lot  availed  himself  of 
the  said  alleyway  and  adjusted  his  buildings  and  fences 
thereto. 

From  the  date  of  his  acquisition  of  said  part  of  lot  one  (1), 
block  seven  (7),  said  Scaggs,  together  with  his  said  wife, 
occupied  said  part  of  lot  one  (1),  block  seven  (7),  purchased 
by  said  Edward  O.  Scaggs,  and  continuously  from  the  date  of 
such  acquisition  to,  on  or  about  August  19,  1914,  used  said 
alleyway  as  such  and  fully  recognized  its  existence  as  the 
private  alleyway  set  apart  for  the  benefit  of  the  three  parts  of 
said  lot  one  (1),  block  seven  (7),  into  which  it  had  been 
divided  and  sold,  and  neither  said  Scaggs  nor  his  said  wife 


BILLS    OF    SPECIAL    CASES.  761 

ever  claimed  or  asserted  any  right  or  interest  in  said  strip  ten 
(10)  feet  wide  by  fifty  (50)  feet  deep  other  than  as  owners 
in  common  with  the  plaintiff  and  the  other  owner  of 
the  remaining  part  of  said  lot  one  (1),  block  seven  (7),  of 
the  alley  easement  hereinbefore  described ;  and  the  plaintiff 
avers  that  from  a  time  prior  to  the  purchase  by  said  Scaggs 
of  said  part  of  said  lot  one  (1),  the  said  Edward  O.  Scaggs 
and  Marion  E.  Scaggs  had  actual  notice  and  knowledge  that 
the  said  strip  ten  (10)  feet  wide  by  fifty  (50)  feet  deep  had 
been  so  set  apart  for  an  alleyway  and  that  the  same  was  sub- 
ject to  an  easement  for  such  alley  use  in  favor  of  each  of  the 
three  owners  of  the  three  parcels  into  which  said  lot  one  (1) 
had  been  subdivided. 

10.  On  or  about  the  19th  day  of  August.  1914,  the  said 
Edward  O.  Scaggs  and  Marion  E.  Scaggs  called  on  Algeron 
R.  McChesney  and  requested  him  to  convey  said  alley  strip  to 
them  as  joint  tenants,  stating  their  purpose  in  asking  for  such 
conveyance  to  be  their  desire  to  maintain  the  said  strip  as  an 
alleyway  and  to  prevent  embarrassment  by  tax  sales  thereof. 

The  said  McChesney  having  been  much  annoyed  by  tax 
notices  concerning  taxes  upon  said  alley  strip  which  had  re- 
mained assessed  on  the  tax  records  of  the  District  of  Columbia 
to  said  McChesney  and  Bakersmith,  trustees,  and  without  any 
consideration  being  paid  him  by  said  Scaggs  and  wife,  and 
solely  for  the  purpose  of  perpetuating  said  strip  for  an  alley- 
way for  the  benefit  of  said  three  parts  of  said  lot  one  (1), 
block  seven  (7).  said  IMcChesney,  describing  himself  as  sur- 
viving trustee  of  the  Enterprise  Building  Company,  conveyed 
to  said  Edward  O.  Scaggs  and  IMarion  E.  Scaggs,  his  wife, 
by  deed  dated  August  19,  1914,  recorded  in  Liber  3727.  folio 
255,  of  said  land  records,  the  said  alley  strip  by  the  following 
description : 

Part  of  lot  one  (1),  in  block  seven  (7).  in  Todd  and 
Brown's  subdivision  of  part  of  "Pleasant  Plains"  and  "Mount 
Pleasant."  as  per  plat  recorded  in  Liber  Levy  Court  No.  2. 
folio  24.  of  the  records  of  the  office  of  the  surveyor  of  the 
District  of  Columbia,  described  as  follows:     Beginning  for 


762  SUTIS    IN    EQUITY. 

the  same  on  the  north  line  of  Irving  street  at  a  point  distant 
forty-one  and  five-tenths  (41.5)  feet  east  of  the  southwest 
corner  of  said  lot,  running  thence  east  ten  (10)  feet;  thence 
north  fifty  (50)  feet  to  the  north  line  of  said  lot;  thence  west 
on  said  north  line  of  said  lot  ten  (10)  feet:  thence  south 
fifty  (50)  feet  to  the  point  of  beginning- ;  being  designated 
for  taxation  purposes  on  the  books  of  the  assessor  of  the 
District  of  Columbia  as  lot  802  in  square  2891. 

So  far  as  plaintiff  knows,  the  said  Bakersmith  is  still  living 
and  the  said  McChesney  was  without  any  title  or  authority 
or  right  to  describe  himself  as  surviving  trustee  and  to  make 
said  deed  to  said  Scaggs  and  wife,  nor  were  the  trusts  under 
which  said  block  seven  (7)  was  held  by  said  McChesney  and 
Bakersmith  such  as  to  authorize  them  or  either  of  them  to 
execute  a  voluntary  conveyance  of  any  part  of  said  block 
seven  (7). 

11.  After  obtaining  said  deed  the  said  Scaggs  and  wife 
commenced  the  erection  of  certain  structures  in  said  alley- 
way, whereupon  plaintiff  notified  them  that  the  said  strip,  as 
they  well  knew,  was  an  alleyway  anrl  that  thev  were  without 
any  title  or  authority  in  anywise  to  obstruct  it,  yet  the  said 
defendants,  although  tliey  well  knew  that  the  statement  of 
plaintiff  was  well  founded,  proceeded  to  erect  certain  struc- 
tures of  inconsiderable  value  and  which  were  so  erected  as 
to  obstruct  the  said  alleyway  and  prevent  plaintiff  from 
utilizing  it  for  the  purpose  for  which  it  was  set  apart,  so  that 
he  is  by  the  erection  of  said  structures  cut  off  and  prevented 
from  having  access  to  Irving  street  as  was  contemplated  bv 
the  setting  apart  of  the  said  ten  (10)  foot  strip  as  an  alleyway. 

12.  The  maintenance,  unobstructed,  of  the  said  alleyway  i^ 
essential  to  the  advantageous  use  of  plaintiff's  part  of  said 
lot  one  (1),  block  seven  (7),  and  if  he  be  deprived  of  that 
use  the  value  of  his  said  property  will  be  greatly  diminished, 
the  price  thereof  depreciated  and  the  opportunity  to  sell  the 
same  at  an  advantageous  price  destroyed.  The  use  of  his 
said   premises  will  also  be  rendered  extremely  inconvenient, 


BILLS    OF    SPECIAL    CASES.  763 

because  of  the  necessity  which  the  obstruction  of  -3aid  alley- 
way will  impose  upon  the  plaintiff  of  carrying  out  all  garbage 
and  other  refuse  through  the  front  of  his  lot  and  of  bringing 
in  coal  and  wood  through  the  front  thereof. 

13.  The  structures  erected  by  the  defendants  are  of  such  a 
character  that  they  can  be  removed  with  very  trifling  expense 
and  their  removal  will  leave  the  defendants  in  the  enjoyment 
of  exactly  the  same  property  which  they  purchased,  with  the 
same  easement  which  they  then  acquired,  and  subject  only  to 
the  easement  in  favor  of  other  owners  in  the  same  lot  and 
block,  of  which  they  had  full  notice  and  knowledge,  both 
actual  and  constructive  before  they  purchased. 

14.  Plaintiff  avers  that  an  action  for  damages  for  the 
obstruction  of  said  alleyway  would  afford  no  adequate  relief, 
and  the  manifestation  and  vindication  of  his  rights  at  law 
would  require  constantly  recurring  suits,  whereas  the  remedy 
in  equity  by  mandatory  injunction  to  compel  the  removal  of 
said  unauthorized  obstructions  of  said  alleyway  would  afford 
complete  relief  in  the  premises. 

Plaintiff  therefore  prays : 

1.  That  t^e  said  strip  of  land  ten  (10)  feet  wide  by  fifty 
(50)  feet  deep,  set  apart  and  designated  as  an  alleyway  as 
aforesaid,  may  be  decreed  to  be  a  private  alley,  laid  out  and 
established  for  the  common  benefit  of  the  plaintiff  and  the 
said  two  other  owners  of  the  remainder  of  said  lot  one   (1). 

2.  That  the  said  deed  from  said  McChesney,  as  surviving 
trustee,  to  said  Scaggs  and  wife  be  decreed  to  be  null  and  void 
and  be  set  aside. 

3  That  by  the  mandatory  injunction  of  this  court  the  de- 
fendants may  be  required  to  remove  the  said  obstructions 
placed  by  them  in  said  alleyway  and  to  restore  the  same  to 
the  condition  in  which  it  was  at  the  time  when  said  obstruc- 
tions were  placed  by  the  defendants  in  said  alleyway. 

4.  That  the  defendants  may  be  perpetually  enjoined  from 
hereafter  erecting  any  other  obstructions  or  structures  in  said 
alleyway. 


764  SUTIS    IN    EQUITY. 

5.   That  plaintiff  may  have  such  otlier  and  further  relief  as 
the  nature  of  his  case  may  require. 

James  B.  Gallagher. 
Oscar  Nauck, 
Jno.  Ridout, 

Attorneys  for  Plaintiff. 

[Verification.] 


No.  480. 

Suit  by  Infant  by  Prochein  Ami  for  Accounting  and  Payment 
Over  Under  a  Trust. 

[Caption.] 

Plaintiff,  by  her  prochein  ami(\)  and  her  solicitors,  Kraut- 
hofif,  Harmon  &  Mathewson,  complaining  of  the  defendant, 
alleges : 

For  a  first  cause  of  action : 

I.  That  Marie  Marjorie  Ambrosius,  the  plaintiff  herein,  is 
an  infant  under  the  age  of  twenty-one  years  and  was  seventeen 
years  of  age  on  the  26th  day  of  April,  1914,  and  is  the 
daughter  of  Herman  Z.  Ambrosius  by  his  first  'wife,  and  is 
and  at  all  times  herein  referred  to  was  a  citizen  and  resident  of 
the  state  of  Illinois  and  resides  in  the  city  of  Chicago,  county 
of  Cook,  state  of  Illinois. 

II.  That  on  the  9th  day  of  February,  1915,  upon  the  peti- 
tion of  said  Marie  Marjorie  Ambrosius,  Kate  Ambrosius  was 
by  an  order  of  this  court  duly  appointed  the  prochein  ami  of 
the  plaintiff  for  the  purposes  of  this  action;  that  said  Kate 
Ambrosius  duly  consented  to  act  and  is  now  acting  as  such 
prochein  ami, (2)  that  said  Kate  Ambrosius  is  a  citizen  and 
resident  of  the  state  of  Illinois  and  resides  in  the  city  of 
Chicago,  county  of  Cook,  state  of  Illinois. 

III.  That  defendant  Iva  H.  Ambrosius  is  a  citizen  and 
resident  of  the  state  of  New  York  and  resides  in  the  borough 
of  Brooklyn,  county  of  Kings,  state  of  New  York,  and  in  the 
eastern  district  of  New  York. 


BILLS    OF   SPECIAL    CASES.  765 

IV.  That  the  matter  in  controversy  herein  exceeds,  exclu- 
sive of  interest  and  costs,  the  sum  or  value  of  $3,000,  and  the 
grounds  upon  which  the  court's  jurisdiction  depends  are  that 
the  suit  is  of  a  civil  nature  between  citizens  of  different  states, 
and  that  the  matter  in  controversy  exceeds,  exclusive  of  inter- 
est and  costs,  the  sum  or  value  of  $3,000. 

V.  That  said  Herman  Z.  Ambrosius,  father  of  the  infant 
Marie  Marjorie  Ambrosius,  died  intestate  on  or  about  the 
15th  day  of  October,  1913,  leaving  an  estate  consisting  of 
personal  property,  and  at  the  time  of  his  death  was  a  resident 
of  the  county  of  Kings  and  state  of  New  York, 

VI.  That  on  or  about  the  28th  day  of  October,  1913.  letters 
of  administration  of  the  goods,  chattels  and  credits  of  said 
Herman  Z.  Ambrosius,  deceased,  were  duly  granted  and  issued 
to  the  defendant.  Iva  H.  Ambrosius.  by  and  out  of  the  Surro- 
gate's Court  of  the  county  of  Kings,  state  of  New  York,  which 
letters  remain  unrevoked  and  are  in  full  force,  and  that  said 
Iva  H.  Ambrosius  has  ever  since  the  issuance  of  such  letters 
been  and  is  now  acting  as  such  administratrix. 

VIL  That  at  all  times  herein  mentioned,  the  plaintiff  re- 
sided with  and  was  in  charge  and  in  the  custody  of  her 
grandmother,  Marie  Ambrosius,  in  Chicago,  state  of 
Illinois. 

VIII.  That  on  or  about  the  26th  day  of  September,  1905, 
said  Herman  Z.  Ambrosius  had  in  his  possession  or  control 
the  securities  described,  set  forth  and  referred  to  in  Exhibit  A 
attached  hereto  and  hereinafter  referred  to. 

IX.  That  on  or  about  the  26th  day  of  September,  1905, 
said  Herman  Z.  Ambrosius.  while  in  possession  or  control  of 
said  securities  as  hereinbefore  alleged,  duly  made  and  executed 
a  declaration  of  trust  in  writing,  a  copy  of  which  is  annexed 
hereto  marked  "Exhibit  A"  and  made  a  part  hereof  as  if 
herein  set  forth  at  length,  and  at  the  same  time  made  and- 
executed  a  duplicate  original  of  said  declaration  of  trust  by 
making  a  letterpress  fascimile  copy  thereof,  which  said  dupli- 
cate original  said  Herman  Z.  Ambrosius  delivered  in  the  city 
of  Chicago,  state  of  Illinois,  to  Marie  Ambrosius,  plaintiff's 


7^  SUTIS    IN    EQUITY. 

grandmother,  for  and  on  behalf  of  this  plaintifif,  Marie 
Marjorie  Ambrosius.  That  by  said  declaration  of  trust  said 
Herman  Z.  Ambrosius  assumed  and  undertook  to  hold  and 
declared  that  he  held  the  securities  therein  described,  set  forth 
and  referred  to  in  trust  for  said  Marie  Marjorie  Ambrosius, 
and  on  and  after  said  date  said  Herman  Z.  Ambrosius  held 
such  securities  as  trustee  and  in  trust  for  said  Marie  Marjorie 
Ambrosius. 

X.  That  Herman  Z.  Ambrosius  while  holding  said  property 
in  trust  as  aforesaid,  collected  and  received  dividends,  interest 
and  income  therefrom,  the  amount  of  which  and  the  particulars 
of  which  are  unknown  to  plaintifif. 

XL  That  said  Herman  Z.  Ambrosius  during  the  continu- 
ance of  said  trust  sold  part  of  said  property  constituting  such 
trust  estate  and  received  the  proceeds  therefrom  and  made 
profits  from  the  use  and  in  connection  with  said  trust  estate, 
but  plaintifif  does  not  know  the  nature  or  amount  of  the  prop- 
erty so  sold  and  does  not  know  the  amount  of  the  proceeds 
thereof  or  the  profits  therefrom  nor  the  particulars  in  respect 
thereof. 

Xn.  That  said  Herman  Z.  Ambrosius  has  never  accounted 
for  or  paid  over  to  plaintifif,  or  to  any  one  for  her,  said 
property  held  by  him  in  trust  or  the  dividends,  interest,  income, 
proceeds  and  profits  in  respect  thereof,  and  defendant  has  never 
accounted  for  or  paid  to  plaintifif,  or  to  any  one  for  her,  any 
of  said  property,  dividends,  interest,  income,  proceeds  and 
profits. 

Xni.  That  since  the  death  of  said  Herman  Z.  y\mbrosius, 
the  estate  theretofore  held  in  trust  by  ;.aid  Herman  Z.  Am- 
brosius for  said  Marie  Marjorie  Ambrosius,  as  aforesaid,  came 
into  and  is  in  the  possession  of  defendant. 

XIV.  That  before  bringing  this  action  plaintifif  duly  de- 
manded of  defendant  that  she  render  an  account  of  said 
property  theretofore  held  in  trust  by  said  Herman  Z.  Am- 
brosius, and  all  dividends,  income,  proceeds  and  profits  in  re- 
spect thereof,  and  transfer  and  turn  over  same  to  the  plaintifif, 
which  the  defendant  has  refused  and  failed  to  do. 


BILLS    OF   SPECIAL    CASES.  7(ff 

For  a  second  cause  of  action : 

XV.  Plaintiff  repeats  each  and  every  allegation  contained 
in  paragraphs  marked  I,  II,  III,  IV,  V,  and  VI  in  the  first 
cause  of  action  hereinbefore  set  forth,  and  makes  them  a  part 
hereof  as  though  herein  set  forth  at  length. 

XVI.  That  on  or  about  the  10th  day  of  September,  1907, 
said  Herman  Z.  Ambrosius  had  in  his  possession  or  control 
the  securities  described,  set  forth  and  referred  to  in  Exhibit  B 
attached  hereto  and  hereinafter  referred  to. 

XVII.  That  on  or  about  the  10th  day  of  September,  1907, 
said  Herman  Z.  Ambrosius  while  in  possession  or  control  of 
said  securities  as  hereinbefore  alleged,  duly  made  and  executed 
a  declaration  of  trust  in  writing,  a  copy  of  which  is  annexed 
hereto  marked  Exhibit  B  and  made  a  part  hereof  as  though 
herein  set  forth  at  length,  by  which  said  Ambrosius  assumed 
and  undertook  to  hold  and  declared  that  he  held  the  securities 
therein  described,  set  forth  and  referred  to  in  trust  for  said 
Marie  IMarjorie  Ambrosius,  and  on  and  after  said  date  said 
Herman  Z.  Ambrosius  held  said  securities  as  trustee  and  in 
trust  for  said  Marie  Marjorie  Ambrosius. 

XVIII.  That  Herman  Z.  Ambrosius  while  holding  said 
propert}'  in  trust  as  aforesaid,  collected  and  received  dividends, 
interest  and  income  therefrom,  tlie  amount  of  which  and  the 
particulars  of  which  are  unknown  to  plaintiff. 

XIX.  That  said  Herman  Z.  Ambrosius  during  the  con- 
tinuance of  said  trust  sold  part  of  said  property  constituting 
such  trust  estate  and  received  the  proceeds  therefrom  and 
made  profits  from  the  use  and  in  connection  with  said  trust 
estate,  but  plaintiff  does  not  know  the  nature  or  amount  of 
the  property  so  sold  and  does  not  know  the  amount  of  the 
proceeds  thereof  or  the  profits  therefrom,  nor  the  particulars 
in  respect  thereof. 

XX.  That  said  Herman  Z.  Ambrosius  has  never  accounted 
for  or  paid  to  plaintiff  or  to  any  one  for  her,  said  property 
held  by  liim  in  trust  or  the  dividends,  interest,  income,  pro- 
ceeds and  profits  in  respect  thereof,  and  defendant  has  never 
accounted  for  or  paid  to  plaintiff,  or  to  any  one  for  her,  any 


768  SUTIS    IN    EQUITY. 

of  said  property,  dividends,  interest,  income,  proceeds  and 
profits. 

XXI.  That  since  the  death  of  said  Herman  Z.  Ambrosius, 
the  estate  theretofore  held  in  trust  by  said  Herman  Z.  Am- 
brosius for  said  Marie  Marjorie  Ambrosius,  as  aforesaid,  came 
into  and  is  in  the  possession  of  defendant. 

XXn.  That  before  bringing  this  action  plaintiff  duly  de- 
manded of  defendant  that  she  render  an  account  of  said  prop- 
erty theretofore  held  in  trust  by  said  Herman  Z.  Ambrosius, 
and  all  dividends,  income,  proceeds  and  profits  in  respect 
thereof,  and  transfer  and  turn  over  same  to  the  plaintiff, 
which  the  defendant  has  refused  and  failed  to  do. 

Wherefore  plaintiff,  in  as  much  as  she  is  remediless  in  the 
premises  according  to  the  strict  rules  of  the  common  law  and 
can  only  have  relief  in  a  court  of  equity  where  matters  of 
this  kind  are  properly  cognizable,  files  this  bill  of  complaint 
and  prays: 

(1)  That  the  defendant  be  compelled  to  account  for  said 
property,  securities,  dividends,  interest,  income,  proceeds  and 
profits;  that  the  defendant  may  be  decreed  to  transfer  and 
turn  over  to  and  pay  to  plaintiff  such  property,  securities  and 
cash  as  on  taking  said  accounting  shall  be  found  to  be  due 
from  the  defendant  to  plaintiff,  together  with  the  costs  and 
disbursements  of  this  action. 

(2)  That  the  plaintiff  may  have  such  other  and  further 
relief  in  the  premises  as  the  nature  and  circumstances  of  the 
case  may  require  and  as  to  this  honorable  court  may  seem 
just  and  proper.  A.  B.  and  C.  D., 

J.   F.   E.,(3)  Solicitors   for   Plaintiff. 

A  member  of  the  firm  of  A.  B.  and  C.  D.  and  one  of 
the  solicitors  of  record  for  the  plaintiff. 

(1)  Rule  70  provides  for  suit  by  prochein  ami  for  an  infant,  subject 
to  the  orders  of  the  court. 

(2)  Citizenship  of  the  infant  here  determines  the  jurisdiction;  in 
Blumenthal  v.  Craig.  81'  Fed.  320,  it  was  held  that  the  next  friend  is  not 
a  party  to  the  action  and  his  citizenship  is  not  a  test  of  jurisdiction  of 
the  federal  courts. 

(3)  Note  the  separate  signature  of  an  individual  member  of  the  firm 
of  solicitors,  in  accordance  with  Rule  24.     Former  Rule  24  required  the 


BILLS    OF    SPECIAL    CASES.  769 

signature  of  counsel,  hence  the  change  to  solicitor  seems  an  intentional 
one. 

Distinction  between  the  rights  of  solicitors  and  counsel  is  made  in 
Goodwin  Co.  v.  Eastman  Co.,  222  Fed.  249. 

The  rules  of  the  United  States  Supreme  Court  name  only  attorneys 
and  counselors;  in  the  6th  Circuit  Rule  1,  "Counsel"  includes  attorneys, 
solicitors^  proctors,  and  advocates.  The  6th  Rule  in  all  Circuits  forbids 
the  clerk  of  the  Circuit  Court  of  Appeals  to  practice  "either  as  attorney 
or  counselor." 

Rule  7  in  all  the  Circuits  deals  with  the  qualifications  for  admission  to 
practice  before  the  respective  Circuit  Courts  of  Appeals  of  "Attorneys  and 
Counselors,"  and  the  term  "Solicitor'  is  not  employed  in  the  rules  of 
any  of  the  Circuits. 

In  the  Equity  Rules,  Rule  52  employs  both  terms  "Counsel  or  Solicitor," 
Rule  53  uses  the  term  "Counsel ;"  Rule  57,  also,  likewise  Rule  69,  where 
it  is  provided  that  "Counsel"  shall  sign  a  petition  for  rehearing. 

Rule  4,  on  Notice  of  Orders,  employs  the  term  "Solicitor"  twice,  and 
in  Rule  24,  under  discussion,  the  subject  heading  is  "Signature  of  Counsel;" 
Rule  28  provides  for  furnishing  to  the  "Solicitor"  a  copy  of  a  bill  amended 
as  of  course ;  Rule  58  provides  for  copies  of  interrogatories  for  the 
"Solicitors"  of  record;  Rule  60  calls  for  notice  to  "Solicitors"  of  proceed- 
ings before  a  master;  Rule  76  provides  for  requiring  "offending  Solicitors" 
to  pay  costs  in  certain  cases,  and  Rule  75  employs  the  term  "Solicitor"  in 
reference  to  the  making  up  of  the  record  on  appeal. 

A  distinction  in  all  these  cases  is  impossible  to  make,  but  generally  it 
would  seem  that  proceedings  before  a  court  or  examiner  are  presumed  to 
be  in  the  hands  of  "Counsel"  while  matters  of  a  more  formal  nature  or 
where  the  parties  themselves*are  competent  to  act  or  receive  action,  such 
as  giving  or  receiving  notices,  the  solicitors  are  named  in  the  rules. 

However,  drawing  distinctions  that  are  material  is  rather  a  fanciful 
matter. 

Certainly  some  ground  appears  for  believing  that  the  Supreme  Court 
is  here  perpetuating  the  old  distinction  between  the  functions  of  "Solici- 
tors" and  "Counsel." 

The  term  "Attorney"  instead  of  "Solicitor"  is  also  in  wide  use. 


No.  481. 

Bill  to  Declare  Present  and  Future  Acquired  Property  of 
Street  Railway  Subject  to  a  Trust  Deed. 

[Caption.l 

To  the  Honorable  District  Court  of  the  United  States  for  the 
Northern  District  of  Texas,  at  AmariIlo:(l) 

Emile  K.  Boisot,  a  resident  and  citizen  of  the  state  of  Illi- 
nois, hereinafter  called  the  plaintiff,  complaining  of  Amarillo 


770  SUTIS    IN    EQUITY. 

Street   Railway   Company,    hereinafter  called   the   defendant, 
represents  and  shows  imto  your  honor: 

First.  That  plaintiff,  Emile  K.  Boisot,  is  now  and  was  on 
all  the  days  and  dates  hereinafter  mentioned  a  resident  and 
citizen  of  the  state  oi  Illinois,  and  an  inhabitant  of  Chicago, 
in  said  state  of  Illinois;  that  the  defendant,  Amarillo  Street 
Railway  Company,  is  a  corporation  duly  and  legally  organ- 
ized and  existing  under  and  by  virtue  of  the  laws  of  the 
state  of  Texas,  having  its  principal  office  and  place  of,  busi- 
ness in  the  city  of  Amarillo,  Texas,  in  the  northern  district 
of  Texas,  Amarillo  division,  and  was  such  corporation  so 
existing  and  having  its  place  of  business  aforesaid  during  all 
the  days  and  dates  hereinafter  mentioned  as  aforesaid,  and 
at  such  times  was,  and  now  is,  a  citizen  and  inhabitant  of 
said  state  of  Texas  and  northern  district  of  Texas. 

Second.  That  by  an  instrument  of  writing  duly  made  and 
executed  by  the  defendant,  the  Amarillo  Street  Railway  Com- 
pany, dated  July  1,  1910,  said  defendant  in  the  exercise  of 
its  powers  under  the  laws  of  the  state  of  Texas,  and  in  ac- 
cordance with  resolutions  duly  passed  by  its  stockholders  and 
directors  at  respective  meetings  thereof  duly  called  and  had, 
authorized  the  issuance  of  a  series  of  bonds  to  be  executed 
under  its  corporate  seal,  by  the  hand  of  its  president  and 
attested  by  its  secretary,  to  be  issued  in  an  amount  not  ex- 
ceeding in  the  aggregate  the  principal  sum  of  two  hundred 
and  fifty  thousand  dollars  ($250,000)  at  any  one  time  out- 
standing, which  bonds  were  required  to  be  of  the  denomina- 
tion of  five  hundred  dollars  ($500)  each,  and  all  of  said 
bonds  to  bear  date  the  1st  day  of  July,  1910,  to  bear  interest 
at  the  rate  of  six  per  cent.  (6%)  per  annum,  payable  semi- 
annually; said  bonds  to  be  equally  and  ratably  secured  by  a 
certain  deed  of  trust  or  mortgage  called  an  indenture;  said 
bonds,  in  accordance  with  said  resolutions  of  the  stockholders 
and  directors  of  defendant,  being  made  payable  on  the  1st  day 
of  July,  1930,  at  the  First  Trust  and  Savings  Bank  of  Chi- 
cago, to  bearer  or,  if  registered,  to  the  registered  holder  of 
said  bonds,  each  of  said  bonds  being  in  the  sum  of  five  bun- 


BILLS    OF    SPECIAL    CASES.  771 

dred  dollars  ($500)  in  gold  coin  of  the  United  States  of 
America,  of  or  equal  to  the  present  standard  of  weight  and 
fineness,  and  interest  thereon  from  the  1st  day  of  July,  1910, 
at  the  rate  of  six  per  cent.  (6%)  per  annum  in  like  gold  coin, 
payable  semi-annually  on  each  1st  day  of  July  and  January 
in  each  year  thereafter  upon  the  presentation  and  surrender 
of  the  respective  coupons  for  such  interest  thereto  attached  as 
they  severally  matured,  and  each  of  said  bonds  further  pro- 
vides that  all  payments  upon  such  bonds  both  of  principal 
and  interest  shall  be  made  without  deduction  for  any  tax, 
which  the  company,  its  successors  of  assigns  may  be  required 
to  pay,  deduct  or  retain  therefrom  under  any  present  or 
future  laws  of  the  United  States  of  America,  or  of  any  state, 
county  or  municipality  thereof.  That  each  of  said  bonds 
states  upon  its  face  that  it  is  issued  under  and  secured  equally 
and  ratably  by  and  subject  to  a  mortgage  or  deed  of  trust 
dated  July  1,  1910,  duly  executed  by  said  Amarillo  Street 
Railway  Company  to  the  First  Trust  and  Savings  Bank  and 
Emile  K.  Boisot,  both  of  Chicago,  as  trustees,  which  is  re- 
ferred to  as  being  recorded  in  the  office  of  the  county  clerk 
of  Potter  county,  Texas.  The  form  and  tenor  of  said  bonds 
are  fully  set  forth  at  large  in  the  mortgage  or  deed  of  trust 
hereinafter  referred  to  and  described,  a  copy  of  which  mort- 
gage is  hereto  annexed  and  marked  Exhibit  "A"  and  made 
a  part  hereof. 

Third.  That  by  a  certain  deed  of  trust  called  an  indenture, 
dated  July  1,  1910,  and  referred  to  in  said  bonds,  said  Ama- 
rillo Street  Railway  Company,  being  thereunto  duly  author- 
ized by  appropriate  action  of  its  board  of  directors  and  by 
consent  and  express  authority  of  its  stockholders,  at  a  meet- 
ing regularly  called  therefor,  at  which  a  quorum  was  present, 
of  which  meeting  due  and  legal  notice  had  been  given  to  the 
stockholders  thereof  as  required  by  law,  duly  made,  executed 
and  delivered  to  said  the  First  Trust  and  Savings  Bank  in 
Chicago,  and  to  Emile  K.  Boisot,  as  trustee,  its  certain  mort- 
gage or  deed  of  trust  dated  July  1,  1910,  wherein  and  where- 
by in  order  to  secure  the  payment  of  the  principal  and  inter- 


772  SUTIS   IN   EQUITY. 

est  of  all  such  bonds  at  any  time  issued  and  outstanding,  and 
to  secure  the  performance  and  observance  of  all  the  covenants 
and  conditions  in  said  mortgage  contained,  the  said  Amarillo 
Street  Railway  Company  granted,  bargained,  sold,  assigned, 
transferred,  set  over,  released,  conveyed  and  confirmed  unto 
the  said  the  First  Trust  and  Savings  Bank  and  Emile  K. 
Boisot,  as  trustee,  to  its,  his  and  their  successors  and  assigns 
in  said  trust  forever,  all  the  following  described  real  and 
personal  property,  lying,  being  and  situated  in  the  county  of 
Potter  and  state  of  Texas,  to-wit: 

1.  Beginning  40  feet*  north  of  the  northeast  corner  of 
block  7,  G.  &  S.  addition  to  Amarillo,  north  line  on  First 
street,  thence  west  on  north  line  of  said  block  120  feet,  thence 
north  fifty  feet  on  line  parallel  with  east  line  of  block  7; 
thence  east  parallel  with  north  line  of  First  street  120  feet 
to  west  line  of  Tyler  street;  thence  south  50  feet  along  the 
west  line  of  Tyler  street  to  beginning,  together  with  power 
plant,  machinery  and  all  equipment  located  there, 

2.  Lot  three  (3),  block  one  hundred  and  seventy-four 
(174),  G.  &  S.  addition  to  Amarillo,  as  shown  by  re- 
corded plat  of  said  addition,  including  the  car-barn  and  equip- 
ment located  there. 

3.  The  company's  street  railway  in  the  city  of  Ama- 
rillo and  additions  thereto,  including  cars,  p>oles,  electric 
wires  and  all  equipment  therewith  connected,  including  the 
company's  franchise  and  franchise  rights,  together  with  all 
appurtenances  thereto  connected. 

4.  All  property  of  every  name  and  nature  from  tim.e 
to  time  hereafter  acquired  by  the  company,  it  being  the 
true  intent  of  the  parties  hereto  that  this  indenture  shall  con- 
vey all  the  property,  real,  personal  and  mixed  of  whatever 
name  or  nature  now  owned  or  held,  or  that  may  hereafter 
be  owned,  held  or  acquired  by  the  company; 

which  said  property  is  situated  in  the  northern  district  of 
Texas,  Amarillo  division. 

That  said  mortgage  was  duly  executed  by'  the  hand  of 
H.   A.   Nobles,   president   of   said   Amarillo    Street   Railway 


BILLS    OF   SPECIAL    CASES.  773 

Company,  attested  by  its  corporate  seal  and  the  hand  of  J.  C. 
Paul,  its  secretary,  said  instrument  being  dated  July  1,  1910, 
and  acknowledged  by  said  president  and  secretary  as  required 
by  the  laws  of  the  state  of  Texas  on  the  30th  day  of  Novem- 
ber, 1910,  and  is  duly  recorded  in  the  deed  of  trust  records 
of  Potter  county,  Texas,  in  volume  11,  at  pages  175  to  196, 
inclusive,  to  which  record  reference  is  here  made  for  a  more 
particular  description  of  said  deed  of  trust  and  of  said  bonds, 
a  true  copy  of  which  said  deed  of  trust  is  hereto  attached 
and  marked  Exhibit  "A"  and  made  a  part  hereof  as  afore- 
said. 

Fourth.  That  the  trustees  accepted  the  trust  created  in 
said  deed  of  trust  and  bonds,  and  thereby  were  fully  author- 
ized and  empowered  to  take  and  hold  in  trust  the  property 
conveyed  to  them  therein,  and  to  execute  the  trust  reposed  in 
them  under  and  by  virtue  of  the  provisions  of  said  instru- 
ments, and  by  reason  of  the  premises  said  Amarillo  Street 
Railway  Company  became  liable  and  promised  to  pay  to  said 
trustees,  or  bearer,  the  amount  of  money  set  forth  in  said 
bonds,  with  interest  thereon  in  the  amount  and  on  the  dates 
expressly  set  forth  therein ;  and  said  bonds  and  indebtedness 
which  they  evidenced  were  secured  by  said  deed  of  trust,  so 
that  said  trustees  and  tlie  holders  of  said  bonds  thereby  ac- 
quired a  good  and  valid  lien  on  all  the  property  hereinbefore 
described  to  secure  the  payment  of  said  bonds  with  interest 
above  stipulated,  and  to  secure  the  faithful  performance  of 
all  the  obligations  set  forth  in  said  bonds  and  deed  of  trust. 

Fifth.  That  in  pursuance  of  the  actions  and  proceedings 
hereinabove  referred  to,  said  Amarillo  Street  Railway  Com- 
pany issued  said  bonds  as  above  described  in  the  aggregate 
sum  of  one  hundred  and  twenty-five  thousand  dollars  ($125,- 
000),  each  of  which  said  bonds  in  said  sum  last  named  was 
delivered  after  execution  as  aforesaid  to  said  trustees  and  the 
said  trustees  made  the  indorsement  on  each  of  said  bonds 
required  in  the  body  thereof  as  set  forth  in  copy  of  said  bond 
incorporated  in  the  mortgage  hereto  annexed,  and  in  all  re- 
spects complied  with  the  terms  and  provisions  of  said  bands 


774  SUTIS   IN   EQUITY. 

and  of  said  deed  of  trust  for  the  proper  and  legal  authentica- 
tion of  said  bonds  so  as  to  make  them  negotiable  and  to  per- 
fect the  rights  and  powers  of  said  trustees  to  sell,  assign  and 
deliver  the  same.  That  said  bonds  aggregating  one  hundred 
and  twenty-five  thousand  dollars  ($125,000)  are  each  and 
all  valid  and  outstanding  obligations  of  the  defendant,  Ama- 
rillo  Street  Railway  Company,  and  are  entitled -to  the  benefit 
of  the  security  of  said  mortgage,  and  said  trustees  are  still 
the  regularly  constituted,  qualified  and  acting  trustees  for 
each  and  all  of  the  holders  of  said  bonds  and  are  entitled  at 
law  and  in  equity  to  represent  said  bondholders  in  all  matters 
arising  under  the  terms,  provisions  and  obligations  set  forth 
in  said  bonds  and  deed  of  trust,  including  the  institution  and 
prosecution  of  this  suit.  Provided,  however,  that  said  deed 
of  trust  by  express  provisions  makes  it  unnecessary  for  the 
said  Emile  K.  Boisot  to  act  as  trustee  in  performing  any  of 
the  acts  which  said  deed  of  trust  authorized  him  to  do  except 
in  cases  where  the  First  Trust  and  Savings  Bank  may  be 
incompetent  and  unqualified  or  unwilling  to  act  as  such  trus- 
tee, and  plaintiff  says  that  said  First  Trust  and  Savings  Bank 
is  unwilling  to  act  as  such  trustee  herein,  so  that  it  is  neces- 
sary for  plaintiff,  Emile  K.  Boisot,  to  prosecute  this  suit 
alone ;  that  this  plaintiff  has  the  right  and  elects  to  prosecute 
the  same  alone,  under  the  express  provisions  of  said  deed  of 
trust,  and  in  accordance  with  the  written  request  of  said  First 
Trust  and  Savings  Bank. 

Sixth.  That  said  deed  of  trust  or  mortgage  contains, 
among  others,  the  following  provision : 

"Article  No.  2 :  The  company  covenants,  promises  and 
agrees  that  it  shall  and  will  pay  the  interest  on  the  said  bonds 
to  the  several  owners  or  holders  thereof,  when  and  as  the 
same  may  become  due  and  payable  according  to  the  tenor 
and  effect  of  said  bonds  and  coupons." 

And  said  deed  of  trust  also  provides,  among  other  things, 
that  in  case  default  shall  be  made  in  the  payment  of  any  in- 
terest accruing  upon  any  one  or  more  of  the  bonds  secured 
or  intended  so  to  be  according  to  the  terms  thereof,  on  any 


BILLS   OF   SPECIAL   CASES.  775 

(lay  when  the  same  shall  become  due  and  such  default  shall 
continue  for  sixty  (60)  days,  then  that  said  trustees  may, 
and  if  so  requested  by  the  holders  of  fifty  per  cent.  (50%) 
in  amount  of  the  amount  then  outstanding,  shall  declare  the 
principal  of  all  the  bonds  hereby  secured  and  then  outstand- 
ing to  be  due  and  payable  immediately,  and  upon  such  decla- 
ration the  same  shall  become  and  be  due  and  payable  immedi- 
ately, anything  in  this  indenture  or  in  said  bonds  to  the  con- 
trary notwithstanding. 

Seventh.  That  by  reason  of  the  premises  it  became  and 
was  the  duty  of  said  Amarillo  Street  Railway  Company  to 
properly  and  regularly  pay  the  interest  on  said  bonds  semi- 
annually on  the  1st  day  of  January  and  July  in  each  and 
every  year  beginning  January  1,  1911,  according  to  the  terms 
and  provisions  of  said  bonds  and  deed  of  trust,  to  said  trus- 
tees or  to  the  legal  owners  and  holders  of  said  bonds  and 
interest  coupons  thereto  attached,  but  that  though  said  inter- 
est coupons  payable  January  1,  1911  to  July  1,  1916,  have 
long  since  matured  and  become  payable,  said  defendant  has 
wholly  failed  and  refused,  though  often  requested  so  to  do, 
to  pay  any  installment  of  interest  on  said  bonds  as  aforesaid, 
so  this  plaintiff  having  elected  to  declare  all  of  said  bonds 
due  by  reason  of  said  default,  the  matter  in  controversy  in 
this  suit  exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  three  thousand  dollars  ($3,000)  ;  and  said  deed  of 
trust  further  provides,  among  other  things,  that  said  trustees 
may  proceed  to  protect  and  enforce  their  rights  and  the 
rights  of  said  stockholders  under  said  indenture,  by  a  suit  or 
suits  in  equity,  or  by  law,  whether  by  the  specific  perform- 
ance of  any  covenant  or  agreement  contained  therein  or  in 
aid  of  the  execution  of  any  power  therein  granted,  or  for  any 
foreclosure  therein,  or  for  the  enforcement  or  any  other  ap- 
propriate legal  or  equitable  remedy  as  the  trustees  shall  deem 
most  effectual  to  protect  and  enforce  the  rights  aforesaid. 

Eighth.  By  reason  of  the  premises  and  because  of  the  de- 
fault in  the  payment  of  said  interest  as  provided  for  in  said 
bonds  and  secured  by  said  deed  of  trust,  plaintiff  has  elected 


77^  SUTIS  IN   EQUITY. 

because  of  having  received  instructions  from  a  majority  of 
the  holders  of  the  bonds  outstanding  to  declare  the  whole 
principal  and  interest  evidenced  by  said  bonds  to  be  due  and 
payable  at  once;  and  plaintiff  represents  and  shows  to  the 
court  that  because  of  such  continued  and  repeated  defaults  in 
the  payment  of  said  interest  a  majority  of  said  bondholders 
have,  in  accordance  with  the  terms  and  provisions  of  said 
.bonds  and  deed  of  trust,  in  writing  expressly  authorized  and 
instructed  plaintiff  to  declare  the  whole  amount  of  indebted- 
'ness  evidenced  by  said  bonds  and  interest  coupons  and  secured 
by  said  deed  of  trust  to  be  due  and  payable  immediately,  and 
plaintiff  has  in  accordance  with  said  instructions  declared 
and  now  declares  the  whole  amount  of  indebtedness  evi- 
denced by  said  bonds  in  the  principal  sum  of  one  hundred 
and  twenty-five  thousand  dollars  ($125,000),  together  with 
said  interest  thereon,  to  be  now  due  and  payable. 

Ninth.  In  addition  to  the  default  on  the  part  of  said 
'Amarillo  Street  Railway  Company,  plaintiff  further  repre- 
sents that  said  defendant  has  been  unable  to  meet  its  out- 
standing indebtedness  as  it  matured  since  the  issuance  and 
delivery  of  said  bonds;  that  it  has  constantly  and  repeatedly 
failed  to  make  sufficient  revenue  to  pay  its  operating  ex- 
penses in  any  year  since  said  bonds  were  issued,  but  has 
steadily  and  continuously  fallen  behind  so  that  the  actual 
expenses  necessarily  incurred  by  said  company  in  the  opera- 
tion and  maintenance  of  its  street  cars  and  street  railroad 
and  other  property  necessarily  incident  thereto  has  been  made 
by  the  incurring  of  added  indebtedness  beyond  the  indebted- 
ness secured  by  said  bonds,  and  it  does  not  now  appear  that 
there  is  any  prospect  of  said  company  earning  its  operating 
expenses  in  the  future,  to  say  nothing  of  a  sufficient  amount 
of  net  earnings  to  pay  the  interest  on  said  bonds  as  the  said 
interest  matures  from  time  to  time;  but  in  addition  thereto 
plaintiff  respectfully  shows  to  the  court  that  the  city  of  Ama- 
rillo,  Texas,  in  which  said  defendant's  property  is  situated 
and  operated,  has  through  its  duly  constituted  authorities, 
to-wit,  its  city  commission,  recently  undertaken  to  pave  Polk 


BILLS    OF    SPECIAL    CASES.  177 

street,  along  and  over  which  one  of  the  hues  of  defendant  is 
situated,  for  a  distance  of  about  seven  blocks,  requiring  in  its 
ordinance  that  said  defendant  shall  bear  the  cost  of  paving 
all  the  street  between  its  rails  and  for  a  distance  of  two  feet 
on  the  outside  of  each  rail,  so  that  the  probable  cost  of  such 
paving,  which  is  now  demanded,  will  be  about  the  sum  of  six 
thousand  dollars  ($6,000),  according  to  the  best  information 
obtained  by  plaintiff,  and  said  city  of  Amarillo  is  further 
threatening  to  increase  said  burden  against  said  defendant  by 
another  levy  upon  its  property  for  additional  paving  along 
said  street  to  a  greater  depth  than  was  at  first  provided  for, 
which  will,  if  said  proceedings  are  perfected  by  said  city, 
increase  the  burden  of  said  defendant  another  six  thousand 
dollars  ($6,000),  or  thereabouts,  which  indebtedness  said  city, 
is  threatening  to  secure  by  issuing  paving  certificates  against 
all  the  property  of  said  defendant,  secured  by  a  lien  on  said 
property.  If  the  threatened  action  of  said  city  commission 
is  carried  out  as  contemplated  by  it.  and  if  said  paving  liens 
shall  be  regularly  and  legally  fixed,  they  will,  so  plaintiff  is 
informed  and  believes,  constitute  first  liens  against  the  prop- 
erty of  defendant,  which  will  take  precedence  over  the  lien 
securing  said  bonds  above  described,  unless  by  the  action 
of  this  court  or  by  the  institution  and  prosecution  of  this  suit 
the  fixing  of  said  lien  or  liens  shall  be  prevented,  and  by 
reason  of  the  failure  and  inability  of  said  defendant  to  earn 
enough  revenue  to  pay  its  operating  expenses  and  fixed 
charges,  and  because  of  the  added  burden  which  said  city  of 
Amarillo  is  now  seeking  to  place  upon  its  property,  plaintiff 
is  informed  and  believes  and  so  charges  that  said  Amarillo 
Street  Railway  Company  is  about  to  discontinue  the  opera- 
tion of  its  cars.  That  said  defendant  is  wholly  insolvent  and 
unable  to  meet  its  indebtedness  either  in  the  regular  course 
of  its  business  or  otherwise,  and  this  without  regard  to  the 
added  burden  which  said  city  of  Amarillo  is  threatening  to 
place  upon  defendant  in  the  way  of  street  paving  certificates 
and  liens,  so  that  it  is  necessary  that  the  property  of  said 
defendant  should  be  taken  charge  of  by  a  receiver  appointed 


778  SUTIS    IN    EQUITY. 

by  your  honor,  whose  duty  it  shall  be  to  preserve  and  care 
for  said  property  pending  this  litigation,  and  so  that  said 
receiver  may,  if  possible  by  any  means,  operate  said  street 
cars,  if  the  same  can  be  done  without  loss  according  to  the 
best  judgment  of  the  court  and  of  said  receiver,  but  unless 
said  street  car  system  can  be  operated  without  loss,  then 
plaintiff  prays  that  your  honor  make  such  orders  as  may  be 
requisite  and  necessary,  instructing  said  receiver  to  care  for 
said  property  and  to  manage  the  same  in  the  way  best  calcu- 
lated to  preserve  the  rights  of  said  bondholders  and  to  lessen 
as  much  as  possible  the  loss  they  will  sustain  by  reason  of  the 
inadequacy  of  their  security;  and  in  this  connection  plaintiff 
respectfully  shows  that  said  deed  of  trust  expressly  provides 
among  other  things  that  in  case  of  any  default  on  the  part 
of  defendant  as  provided  in  said  deed  of  trust  entitling  the 
trustees  to  enter  into  possession  of  said  property,  or  upon 
application  of  the  trustees  and  with  the  consent  of  the  com- 
pany, if  there  be  no  subsisting  default  under  said  deed  of 
trust,  that  a  receiver  may  be  appointed  to  take  possession  of 
and  to  operate,  maintain  and  manage  the  whole  or  any  part 
of  said  property  wheresoever  the  same  may  be  situated,  with 
all  the  rights,  powers  and  duties  conferred  upon  the  trustees, 
and  that  the  company  shall  transfer  and  deliver  to  such  re- 
ceiver all  such  property  in  its  possession  wheresoever  the 
same  may  be  situated. 

Tenth.  Plaintiff  alleges  that  no  proceedings  at  law,  or 
suits  in  equity,  have  been  begun  or  commenced  by  plaintiff 
or,  as  plaintiff  is  informed  and  believes,  by  any  holder  of  any 
of  the  bonds  secured  by  said  mortgage,  or  of  any  coupons 
thereto  attached,  to  enforce  the  payment  of  the  same  so  cove- 
nanted to  be  paid  by  said  Amarillo  Street  Railway  Company, 
under  the  terms  of  said  mortgage. 

The  premises  considered,  plaintiff  prays  because  he  is 
remediless  in  the  premises  according  to  the  strict  rules  of  the 
common  law  and  can  only  have  relief  in  a  court  of  equity, 
where  matters  of  this  kind  are  properly  cognizable: 


BILLS    OF    SPECL\L    CASES.  779 

1.  That  said  defendant  may  be  required  to  answer  unto  all 
and  singular  the  matters  hereinbefore  stated  and  charged,  as 
fully  and  particularly  as  if  the  same  were  herein  expressed  and 
it  thereunto  particularly  interrogated,  but  not  under  oath, 
answer  under  oath  being  expressly  waived. 

2.  That  an  account  be  taken  of  all  the  property  subject  to 
the  lien  of  said  mortgage  of  July  1,  1910,  and  that  said 
mortgage  may  be  decreed  to  be  a  valid  lien  upon  all  and 
singular  the  real  estate  and  personal  property  described  in 
said  mortgage,  copy  of  which  is  hereto  annexed  and  marked 
Exhibit  "A,"  together  with  all  of  the  rights  under  contracts, 
privileges  and  franchises  thereto  in  anywise  belonging  or 
appertaining. 

3.  That  said  Amarillo  Street  Railway  Company,  and  the 
present  holders  of  all  of  said  bonds  issued  or  outstanding,  be 
required  to  surrender  the  same  for  cancellation,  or  that  in  the 
event  any  of  said  bonds  be  in  the  hands  of  holders  who  do 
not  surrender  same  that  such  holders  may  be  made  parties 
to  this  suit  and  abide  by  the  further  orders  of  this  court 
should  it  be  deemed  by  the  court  necessary  that  such  holders 
should  be  made  parties  in  order  to  properly  protect  and  en- 
force their  rights  and  complete  the  foreclosure  and  sale  of 
all  of  the  property  of  said  defendant. 

4.  That  it  be  decreed  by  this  court  that  the  whole  of  the 
principal  sum  of  the  bonds  secured  by  said  mortgage  of  July 
1,  1910,  is  immediately  due  and  payable  and  that  an  account 
be  taken  of  the  bonds  now  outstanding  and  secured  by  said 
mortgage  of  July  1,  1910,  and  of  the  amount  due  on  said 
bonds  for  principal  or  interest  or  otherwise,  and  of  the 
amount  due  the  trustees  in  thp  execution  of  the  trust  thereby 
created,  and  defendant,  Amarillo  Street  Railway  Company, 
and  all  persons  claiming  under  and  through  it  may  be  for- 
ever barred  and  foreclosed  of  any  and  from  any  equity  of 
redemption  of  any  and  all  other  rights,  statutory  or  other- 
wise, or  of  claims  of  and  in  and  to  said  property,  franchises 
and  privileges,  conveyed  to  said  trustees  as  described  in  said 
mortgage  of  July  1,   1910,  and  all  other  property  that  may 


780  SUTIS   IN    EQUITY. 

be  declared  by  this  court  to  be  subject  to  the  lien  of  said 
mortgage.  That  all  and  singular  the  property,  franchises 
and  premises  mortgaged  and  pledged  in  said  deed  of  trust, 
and  all  other  property  which  may  be  decreed  by  this  court  to 
be  subject  to  the  lien  of  said  mortgage  may  be  sold  in  one 
parcel  and  as  an  entirety  under  decree  of  this  honorable 
court,  and  that  out  of  the  proceeds  of  such  sale  the  costs, 
expenses  and  allowances  of  this  suit,  including  a  reasonable 
attorney's  fee  for  plaintiff's  counsel,  be  paid;  that  out  of  the 
remainder  of  the  money  realized  from  said  sale,  the  money 
found  to  be  due  the  holders  of  the  bonds  secured  by  said 
mortgage  be  paid,  and  that  in  case  of  the  insufficiency  of 
such  proceeds  to  pay  in  full  such  attorney's  fees,  costs  and 
expenses  of  this  suit,  and  the  amount  of  the  principal  and 
interest  so  due  and  unpaid  on  the  bonds  secured  by  said 
mortgage  then  outstanding,  and  the  amount  found  to  be  due 
plaintiff  in  the  execution  of  the  trusts  imposed  upon  him,  a 
judgment  may  be  rendered  in  this  cause  for  such  deficiency 
against  said  defendant,  Amarillo  Street  Railway  Company. 

5.  That  for  the  purpose  of  preserving  the  assets  of  said 
Amarillo  Street  Railway  Company  from  further  depreciation, 
and  for  the  purpose  of  preserving  the  property  and  the  books, 
accounts,  records  and  papers  of  said  company  pending  this 
suit,  that  without  notice  to  the  defendant  a  receiver  or  re- 
ceivers be  appointed,  with  the  usual  powers  of  receivers  in 
like  cases,  of  the  plant,  property,  franchises  and  premises 
mortgaged  and  described  in  said  mortgage  of  July  1,  1910. 
and  of  the  tolls,  earnings,  incomes,  rents,  issues  and  profits 
thereof,  and  of  the  books,  accounts,  records  and  papers  of 
said  Amarillo  Street  Railway  Company,  and  that  such  direc- 
tions may  be  made  with  respect  to  such  receivership  as  may 
be  equitable  and  proper,  and  that  pending  this  suit  all  such 
orders,  writs  and  process  as  may  be  requisite  and  necessary 
may  be  entered  or  issued  by  this  court  restraining  and  pro- 
hibiting all  persons,  firms  and  corporations  from  interfering 
with,  transferring,  selling,  incumbering  or  disposing  of  any 
of  the  property  of  said  Amarillo   Street  Railway  Company 


BILLS    OF   SPECIAL    CASES.  781 

under  the  control  of  said  receiver  or  receivers,  or  in  any 
manner  interfering  with  the  use,  possession  or  title  of  said 
property  or  any  part  thereof. 

6.  That  plaintiff  may  have  such  other  and  further  relief  in 
the  premises  as  may  be  just  and  equitable  and  as  to  your 
honor  may  seem  meet  and  proper. 

Frueauff,  Robinson  &  Sloan, 
By  Robert  S.  Sloan, 

Attorneys  for  Plaintiff. 

State  of  Illinois,  County  of  Cook,  ss.  (2) 

Before  me,  the  undersigned.  Lillian  Narensky,  a  notary 
public  in  and  for  said  county  and  state,  personally  appeared 
Robert  S.  Sloan,  who,  being  by  me  duly  sworn,  deposes  and 
says  that  he  is  the  duly  authorized  attorney  and  agent  of  the 
complainant  in  the  above  entitled  cause ;  that  he  has  read  the 
foregoing  bill  of  complaint  and  has  knowledge  of  the  facts 
therein  alleged,  and  that  the  facts  therein  alleged  are  true. 

Robert  S.  Sloan. 

Sworn  to  and  subscribed  before  me  this  the  14th  day  of 
August,  A.  D.  1916.  Lillian  Narensky, 

[Seal.]  Notary  Public. 

My  commission  expires  March  22,  1917. 

(1)  The  address  is  not  necessary  under  Rule  25. 

(2)  Verification  by  attorney  as  agent  for  plaintiff,  is  here  based  on  his 
own  knowledge.     This  complies  with  the  requirement  of  Rule  25. 


782  SUTIS    IN    EQUITY. 

BILLS  NOT  ORIGINAL. 

No.  482. 
Petition  for  Leave  to  File  Supplemental  Bill.(l) 

[Caption,  as  in  an  original  bill.] 

The  petition  of  A.  B.,  the  above  plaintifif,  respectfully  shows 

that  on  or  about  the  day  of ,  your  petitioner  filed 

his  bill  in  this  honorable  court  against  C.  D.,  for  the  purpose 
of  [state  general  object  of  original  bill],  and  praying  [state 
the  prayer  verbatim]. 

And  your  petitioner  further  shows  that  the  said  C.  D.,  be- 
ing served  with  process  of  subpoena,  appeared  to  the  said 
bill,  but  has  not  yet  put  in  his  answer  thereto.  That  after 
the  appearance  of  the  said  defendant  was  entered,  that  is  to 

say.  on  or  about  the day  of ,  and  before  any  further 

proceedings  were  had  in  the  said  cause  [state  the  supplemental 
matter]  ;  wherefore  your  petitioner  is  advised  that  it  is  neces- 
sary to  bring  the  said  C.  H.  before  this  court  as  a  party  de- 
fendant to  this  suit. 

Your  petitioner  therefore  prays  that  leave  may  be  granted 
to  him  to  file  a  supplemental  bill  against  the  said  C.  H.,  for 
the  purpose  of  making  him  a  party  defendant  to  this  suit 
with  proper  and  apt  words  to  charge  him  as  such,  and  with 
such  prayer  for  relief  as  may  be  proper,  and  for  such  other, 
etc. 

(1)   See  Equity  Rule  34. 


No.  483. 

Order  to  File  Supplemental  Bill  of  Complaint. 

[Caption.]' 

On  reading  and  filing  the  petition  of  Constanti'^e  Stephano 
and  Stephano  Stephano,  co-partners  trading  as  Stephnno 
Brothers,  and  Stephano  Brothers,  Incorporated,  filed  January 
20,  1913,  and  the  bill  in  the  nature  of  a  supplemental  bill  of 


BILLS    NOT    ORIGINAL.  *  783 

Stephano  Brothers,  Incorporated,  verified  the  same  day,  and 
after  hearing  Henry  W.  Wise,  of  counsel,  in  support  of  said 
petition,  and  no  one  appearing  in  opposition  thereto. 

Now,  on  motion  of  Wise  &  Lichtenstein,  solicitors  for  Con- 
stantine  Stephano  and  Stephano  Stephano,  co-partners  trading 
as  Stephano  Brothers,  and  Stephano  Brothers,  Incorporated, 
it  is 

Ordered,  that  Stephano  Brothers,  Incorporated,  be  substi- 
tuted as  complainant  in  place  of  Constantine  Stephano  and 
Stephano  Stephano,  in  the  action  now  pending  in  this  court, 
originally  brought  by  Constantine  Stephano  and  Stephano 
Stephano  against  Stamatis  D.  Stamatopoulos,  Peter  D.  Sta- 
matopoulos.  Stamatis  D.  Stamatopoulos  and  George  Papa- 
georges.  co-partners  trading  under  the  firm  name  of  Sta- 
matopoulos &  Co.,  and  it  is  further 

Ordered,  that  the  bill  in  the  nature  of  a  supplemental  bill 
of  Stephano  Brothers,  Incorporated,  against  Stamatis  D.  Sta- 
matopoulos, Peter  D.  Stamatopoulos,  Stamatis  D.  Stamato- 
poulos and  George  Papageorges,  co-partners  trading  under 
the  firm  name  of  Stamatopoulos  &  Co.,  be  filed. 

E.  Henry  Lacombe, 
United  States  Circuit  Judge. 


No.  484. 

Supplemental  Bill.(l) 

[Caption  and  introduction,  as  in  an   original  bill.] 

That  on  or  about,  etc.,  plaintiff  exhibited  his  original  bill 
of  complaint  in  this  honorable  court,  against  C.  D.,  the  de- 
fendant   hereinafter    named,    as    defendant    thereto,    thereby 

stating  a  certain  memorandum  of  agreement,  dated  the  

day  of  ,  ,  and  made  between  E.   W.,   therein  de- 
scribed, of  the  one  part,  and  plaintiff  of  the  other  part,  and 
signed  by  the  said  E.  W.,  whereby  the  said  E.  W.  agreed  to. 
sell  to  plaintiff  a  certain  lot  or  piece  of  land  called,  etc.,  therein 
particularly   described,   and   of   which   the   said   E.    W.   was 


784  '  SUTIS    IN    EQUITY. 

seized  in  fee,  for  the  sum  of  — '■ —  dollars;  and  further  stating 
the  delivery  by  the  said  E.  W.  of  the  abstract  of  his  title,  and 
the  acceptance  of  such  title  by  plaintiff;  and  further  stating 
the  death  of  the  said  E.  W.,  intestate,  and  that  he  left  the 
said  J.  W.,  his  only  son  and  heir  at  law;  and  that  letters  of 
administration  of  the  estate  and  effects  of  the  said  E.  W.  had 

been  granted  by  the  surrogate  of  the  county  of  to  the 

said  J.  W. ;  and  further  stating  applications  on  the  part  of 
plaintiff  to  the  said  J.  W.  to  perform  the  said  agreement  so 
entered  into  by  his  father  as  aforesaid,  and  his  refusal  to  do 
so;  and  charging  that  the  said  lot  or  piece  of  land,  called,  etc., 
formed  part  of  a  considerable  estate  called  Hesseltine,  the 
whole  of  which  had,  before  the  date  of  the  said  contract  for 

sale,  been  mortgaged  by  the  said  E.  W.  to  one  J.  S.  for 

dollars,  which  mortgage  debt  was  still  due  and  owing;  and 
charging  that  the  said  E.  W.  would,  if  living,  be  bound  to 
redeem  the  said  mortgage,  in  order  to  convey  the  said  lot  or 
piece  of  land  to  plaintiff  free  from  incumbrances,  and  that 
the  said  J.  W.  was  bound  to  do  so  to  the  extent  of  his 
father's  assets,  which  plaintiff  charged  were  amply  sufficient 
for  the  same;  and  praying  that  the  said  J.  W.  might  be  de- 
creed specifically  to  perform  the  said  agreement  so  entered 
into  by  the  said  E.  W.  as  aforesaid,  and  to  convey  and  pro- 
cure all  proper  parties  to  join  in  conveying  the  said  lot  or 
piece  of  land  comprised  in  the  said  agreement  to  plaintiff,  or 
as  he  should  direct,  upon  plaintiff's  paying  to  the  said  J.  W. 

the  sum  of dollars,  which  he  thereby  offered  to  do,  and 

in  all  respects  to  perform  the  said  agreement  on  his  part ;  and 
in  case  the  said  J.  W.  should  not  admit  assets  of  his  said 
father  sufficient  to  enable  him  to  perform  the  said  agreement, 
then  that  the  usual  accounts  of  the  real  and  personal  estate  of 
the  said  E.  W.  might  be  taken ;  and  that  plaintiff  might  have 
such  other  or  further  relief  in  the  premises  as  the  circum- 
stances of  his  case  might  require,  and  to  your  honor  should 
seem  meet. 

Plaintiff  further  shows  unto  your  honor  that  the  said  J.  W., 
being  duly  served  with  process  of  subpoena,  appeared  to  plain- 


BILLS    NOT    ORIGINAL.  785 

tiff's  said  bill  and  put  in  his  answer  thereto,  whereby  he  al- 
leged, among  other  things,  that  he  could  not  perform  the  said 

agreement  of  the  day  of ,  without  first  redeeming 

the  said  mortgage  so  made  to  the  said  J.  S.  as  aforesaid,  and 
that  the  assets  of  the  said  J.  W.  were  not  sufficient  to  enable 
him  to  do  so. 

That  the  said  answer  has  been  replied  to  by  plaintiff,  and 
witnesses  have  been  examined  on  both  sides,  but  the  proofs 
have  not  yet  been  closed ;  as  by  the  said  bill  and  proceedings, 
now  remaining  as  of  record  in  this  honorable  court,  reference 
being  had  thereto,  will  appear. 

Plaintiff  further  shows,  by  way  of  supplement,  that  plaintiff 
has  lately,  and  since  the  examination  of  witnesses  in  the  said 
cause,  discovered,  as  the  fact  is,  that  the  said  J.  S.  now  is  and 
always  since  the  date  of  the  said  agreement  has  been  ready 
and  willing  to  concur  in  conveying  the  said  lot  or  piece  of 
land  to  plaintiff,  discharged  from  his  said  mortgage,  upon  re- 
ceiving plaintiff's  purchase  money  in  discharge,  pro  tanto,  of 
the  said  mortgage  debt. 

And  plaintiff  charges  that  such  information  was  first  given 
to  him  by  means  of  a  letter  addressed  by  the  said  J.  S.  to 
Mr.  X,  plaintiff's  solicitor,  and  dated,  etc.,  part  of  which  was 
in  the  words  and  figures  following;  that  is  to  say:  "Mr.  W.'s 
refusal  to  carry  into  effect  his  agreement  with  Mr.  B.  is  un- 
accountable to  me,  because  he  knows  that  I  have  always  been 
willing  and  even  desirous  to  confirm  the  sale,  and  to  release 

the  premises  from  my  mortgage  on  receiving  the dollars 

towards  my  debt.  This,  in  fact,  was  understood  between  his 
father  and  myself  at  the  time  when  the  sale  to  Mr.  B.  was 
made" ;  as  by  such  letter,  reference  being  had  thereto,  will 
more  fully  appear. 

Plaintiff  charges,  therefore,  that  it  is  unimportant  whether 
the  said  J.  W.  has  assets  of  his  father  sufficient  to  redeem  the 
mortgage  debt  so  due  to  the  said  J.  S.  as  aforesaid,  inasmuch 
as  the  said  J.  S.  is  willing  to  be  partially  redeemed,  and  the 
purchase-money  of  plaintiff  is  sufficient  for  that  purpose. 


'786  SUTIS    IN    EQUITY. 

That  the  said  J.  W.  ought  to  be  decreed  to  join  with  the 
said  J.  S.  (whose  concurrence  plaintiff  undertakes  to  procure) 
in  conveying  the  said  lot  or  piece  of  land  to  plaintiff,  upon 

payment  by  plaintiff  of  the  said  sum  of  dollars  to  the 

said  J.  S.,  in  part  discharge  of  his  said  mortgage  debt. 

Therefore  plaintiff  prays  that  the  said  defendant  may  an- 
swer and  set  forth,  in  manner  aforesaid,  whether  plaintiff  did 
not,  on  or  about,  etc.,  or  at  some  other  and  what  time,  ex- 
hibit his  original  bill  of  complaint  in  this  honorable  court 
against  such  person,  and  of  or  to  such  purport  or  effect  as 
hereinbefore  in  that  behalf  stated,  or  against  some  other  and 
what  person,  and  of  or  to  some  other  and  what  purport  or 
effect,  or  how  otherwise?  And  whether  thereupon  such  pro- 
ceedings were  not  had  in  the  said  cause  as  are  hereinbefore 
in  that  behalf  stated,  or  how  otherwise?  And  whether  plain- 
tiff has  not,  since  the  examination  of  witnesses  in  the  said 
cause,  or  at  some  other  and  what  period,  discovered,  and 
whether  it  is  not  the  fact  that  the  said  J.  S.  now  is,  and 
whether  or  not  he  always,  since  the  date  of  the  said  agree- 
ment, has  been  ready  and  willing  to  concur  in  conveying  the 
said  lot  or  piece  of  land  to  plaintiff,  discharged  from  his  said 
mortgage,  upon  receiving  the  purchase-money  in  discharge, 
pro  tanto,  of  the  said  mortgage  debt,  or  how  otherwise?  And 
whether  such  information  was  not  first  given  to  plaintiff  by 
means  of  such  letter  as  hereinbefore  in  that  behalf  stated,  or 
some  other  and  what  letter,  or  by  some  other  and  what  means, 
or  how  otherwise,  and  when  was  such  information  first  given 
to  plaintiff?  Whether  such  letter  as  is  hereinbefore  mentioned 
to  bear  date,  etc.,  was  not  addressed  by  such  person  to  such 
person,  and  whether  it  was  not  of  such  date,  and  partly  in 
such  words  and  figures,  or  of  or  to  such  purport  or  effect,  as 
hereinbefore  in  that  behalf  stated,  or  addressed  by  some  other 
and  what  person  or  persons,  to  some  other  and  what  person 
or  persons,  of  some  other  and  what  date,  and  (with  respect 
to  the  part  thereof  hereinbefore  in  that  behalf  mentioned)  in 
some  other  and  what  words  and  figures,  or  of  or  to  some 
other  and  what  purport  or  effect,  or  how  otherwise?   Whether 


BILLS    NOT    ORIGINAL.  787 

it  is  not,  and  whether  not  for  the  reasons  hereinbefore  in  that 
behalf  given,  unimportant,  for  the  purposes  of  these  suits, 
whether  the  said  defendant  has  assets  of  his  father  sufficient 
to  redeem  the  said  mortgage  debt,  or  how  otherwise?  And 
whether  the  said  defendant  ought  not  to  be  decreed  to  join 
with  the  said  J.  S.  in  such  conveyance  as  hereinbefore  in  that 
behalf  stated,  or  in  some  other  conveyance  of  the  same  nature, 
upon  such  payment  by  plaintiff  as  hereinbefore  in  that  behalf 
mentioned,  or  some  other  and  what  payment,  or  how  other- 
wise ;  and  if  not,  why  not. 

And  that  plaintiff  may  have  the  same  relief  against  the  said 
J.  W.  as  might  have  had  if  the  facts  hereinbefore  stated  and 
charged  by  way  of  supplement  had  been  stated  in  plaintiff's 
said  original  bill.  And  in  case  the  said  defendant  shall  con- 
tinue to  allege  that  he  has  not  assets  of  the  said  E.  W.  suf- 
ficient for  the  redemption  of  the  mortgage  debt  so  due  to  the 
said  J.  S.  as  aforesaid,  then  that  he  may  be  decreed  to  join 
with  the  said  J.  S.  in  conveying  the  said  lot  or  piece  of  land 

comprised  in  the  said  agreement  of  the  day  of  , 

unto  plaintiff  and  his  heirs,  or  as  he  shall  direct,  upon  plain- 
tiff's paying  to  the  said  J.  S.  -the  said  purchase-money  or  sum 

of  dollars  towards  the  discharge  of  the  said  mortgage 

debt ;  plaintiff  hereby  offering  to  pay  such  sum,  and   in  all 

respects  to  perform  the  said  agreement  of  the  day  of 

,  on  his  part,  and  also  undertaking  to  procure  the  concur- 
rence of  the  said  J.  S.  in  such  conveyance  as  aforesaid :  and 
that  plaintiff  may  have  such  further  and  other  relief  in  the 
premises  as  the  circumstances  of  his  case  may  require,  and  to 
your  honor  shall  seem  meet. 

(1)  New  averments  are  properly  alleged  in  a  supplemental  bill,  and 
in  it  any  party  may  be  brought  before  the  court  who  has  been  omitted 
to  be  introduced  at  the  stage  of  the  cause  at  which  an  amendment  for 
that  purpose  may  be  made.  Dow  v.  Jewell,  45  Am.  Dec.  371.  Thus, 
where  a  complainant  had  no  ground  for  proceeding  originally,  but 
subsequently  becomes  entitled  to  relief,  he  should  file  a  new  bill. 
Caudler  v.  Pettit,  19  Am.  Dec.  399.  And  the  assignee  of  complainant 
must  make  himself  a  party  by  supplemental  bill ;  he  can  not  proceed 
in  the  name  of  the  original  party.    Mills  v.  Hoag,  31  Am.  Dec.  271.     But 


788  SUTIS   IN    EQUITY. 

where  a  complainant  has  assigned  his  interest  in  the  subject-matter  of  the 
litigation  pending  the  suit,  his  assignee  can  not  on  a  supplemental  bill 
be  substituted  to  his  rights;  he  must  file  an  original  bill  in  the  nature 
of  a  supplemental  bill.    Tappan  v.  Smith,  5  Biss.  73. 

New  oral  testimony,  tending  merely  to  corroborate  evidence  on  the 
one  side,  or  to  contradict  evidence  on  the  other,  on  the  points  in  issue, 
is  not  a  sufficient  foundation  for  a  supplemental  bill.  No  new  evidence 
is  a  sufficient  foundation  for  a  supplemental  bill,  unless  it  be  of  such  a 
nature  that  it  would,  if  unanswered,  require  a  reversal  of  the  decree. 
Jenkins  v.  Eldridge,  3  Story  299. 

A  bill  stating  previous  proceedings  of  the  court,  not  with  a  view  to 
their  alteration  or  amendment,  but  as  a  portion  of  the  facts  out  of 
which  the  complainant's  equity  arises,  is  an  original  bill,  though  it  is 
alleged  to  be  a  supplemental  bill.    Brooks  v.  Brook,  38  Am.  Dec.  310. 

After  a  case  has  been  argued  and  has  been  under  advisement,  it  is 
proper  for  the  circuit  court  to  deny  the  motion  for  leave  to  file  a  fur- 
ther bill,  making  an  essential  change  in  the  character  and  objects  of 
the  cause,  by  way  of  supplement  and  amendment.  Snead  v.  McCoull, 
12  How.  407. 

Equity  Rules  34  and  35  deal  with  this  matter. 


No.  485. 

Supplemental  Bill  Against  the  Trustee  of  a  Bankrupt 

Defendant. 

[Caption  and  introduction,  as  in  an  original  bill] 

That  plaintiff,  A.  B.,  did  in  or  as  of term,  ,  ex- 
hibit his  original  bill   of  complaint   in   this   honorable   court 

against   C.   D.,   of  ,   praying  that  an   accoimt  might  be 

taken  of  the  personal  estate,  effects,  etc.  And  plaintiff  fur- 
ther shows  that  the  said  defendant,  having  been  served  with 
process  to  appear,  appeared  accordingly  and  put  in  his  answer 
to  the  said  bill,  and  plaintiff  replied  to  the  said  answer,  but 
before  any  further  proceedings  were  had  in  the  said  cause,  and 

on  or  about  the day  of ,  the  said  C.  D.  has  been 

duly  found  and  declared  bankrupt,  and  E.  D..  of  ,  the 

defendant  hereinafter  named,  having  been  since  duly  chosen 
trustee  of  the  estate  and  effects  of  the  said  bankrupt,  and  the 
title  to  all  the  estate  and  effects  late  of  the  said  bankrupt,  has 
vested  in  the  said  E.  D.,  and  therefore  plaintiff  is  advised  that 
he  is  entitled  to  the  same  relief  against  the  said  E.  D.  as  he 


BILLS    NOT   ORIGINAL.  789 

would  have  been  entitled  to  against  the  said  C.  D.  if  he  had 
not  become  bankrupt.     To  the  end  therefore,  etc. 

And  that  plaintiff  may  have  the  full  benefit  of  the  said  suit 
and  proceedings  therein  against  the  said  E.  D.,  and  may  have 
the  same  relief  against  him  as  plaintiff  might  or  could  have 
had  against  the  said  C.  D.  in  case  he  had  not  become  bank- 
rupt ;  or  that  plaintiff  may  have  such  further  or  other  relief 
in  the  premises  as  to  your  honors  shall  seem  meet. 


No.  486. 

Supplemental  Bill  to  an  Original  and  Amended  Bill  Filed 
by  a  Lessee  for  the  Specific  Performance  of  an  Agree- 
ment to  Grant  a  Further  Lease. 

[Caption  and  introduction,  aJ  in  an   original  hill] 

That  in  or  as  of term. ,  plaintiff,  A.  B..  exhibited 

his  original  bill  of  complaint  in  this  honorable  court  against 
H.  B.,  and  which  said  bill  has  been  amended  by  order  of  this 
honorable  court,  thereby  praying  that  the  said  defendant 
might  be  decreed  specifically  to  perform  his  agreement  with 
plaintiff,  touching  the  lease  of  the  farm  and  premises  in  the 
said  bill  mentioned,  and  to  grant  plaintiff  a  lease  thereof  for 

years,  commencing  from  the  expiration  of  his  former 

lease,  at  the  yearly  rent  of  dollars,  plaintiff  being  will- 
ing and  ready  to  do  and  perform  everything  on  his  part  re- 
quired to  be  done  and  performed  in  pursuance  of  the  said 
agreement. 

And  plaintiff  further  shows  that  the  said  defendant  ap- 
peared and  put  in  his  answer  to  the  said  original  bill.  As  by 
the  said  bill  and  answer  now  remaining  as  of  record  in  the 
honorable  court,  reference  being  thereunto  had,  will  appear. 

And  plaintiff  further  shows,  by  way  of  supplement,  that 
since  the  filing  of  the  said  original  bill  the  said  defendant  has 
caused  an  action  of  ejectment  to  be  commenced  in  the  court 

of ,  for  the  purpose  of  turning  plaintiff  out  of  possession 

of  the  said  farm  and  premises,  and  the  said  action  is  still  de- 


790  SUTIS    IN    EQUITY. 

pending  in  the  said  court.  And  plaintiff  being  advised  that 
the  said  defendant  can.  not  support  such  action,  and  that  he  is 
entitled  to  a  specific  performance  of  the  said  agreement  as 
prayed  by  his  said  amended  bill,  he  has,  by  himself  and  his 
agents,  several  times  applied  to,  and  requested  the  said  de- 
fendant to  desist  from  proceeding  in  the  said  action,  and  he 
was  in  hopes  that  he  would  have  complied  with  such  fair  and 
reasonable  requests,  as  in  justice  and  equity  he  ought  to  have 
done.  But  the  said  H,  B.  refuses  to  comply  with  plaintiff's 
said  requests  and  insists  upon  proceeding  in  his  said  action, 
and  to  turn  plaintiff  out  of  possession  of  the  said  farm  and 
lands,  to  his  manifest  wrong  and  injury  in  the  premises. 

Therefore  plaintiff  prays  that  the  said  defendant  may  be 
restrained  by  the  injunction  of  this  honorable  court  from  pro- 
ceeding in  the  said  action,  a-nd  from  commencing  any  other 
action  or  proceeding  at  law  for  the  purpose  of  turning  plain- 
tiff out  of  possession  of  the  said  farm  and  lands.  [And  for 
further  relief.] 

[Pray  injunction  against  H.  B.] 


No.  487. 
Supplemental  Bill  in  a  Patent  Case. 

For  form,  see  under  title  "Patents." 


No.  488. 

To  Perpetuate  Testimony.  (1) 

[Caption  and  introduction.] 

The  plaintiff,  A.  B.,  of,  etc.,  shows  unto  your  honors  that 
C.  D.,  late  of,  etc.,  deceased,  before  and  at  the  time  of  making 
his  will  hereinafter  mentioned,  was  seized  in  fee  of  and  in 
divers  freehold  estates,  which  are  hereinafter  more  fully  men- 
tioned and  described;  and  the  said  C.  D.,  being  so  seized  as 
aforesaid,  and  being  of  sound  and  disposing  mind,  memory 
and  understanding,  duly  made  and  published  his  last  will  and 


BILLS    NOT    ORIGINAL.  791 


testament   In   writing,   bearing   date   the day  of 


signed  by  him,  the  said  C.  D.,  and  subscribed  and  attested 
according  to  law ;  and  which  said  will,  with  the  attestation 
thereof,  is  in  the  words  and  figures  following;  that  is  to  say 
[set  out  the  zcill  and  the  attestation  z'erbatim],  as  by  the  said 
will  and  the  attestation  clause  thereof,  reference  being  thereto 
had,  will  appear. 

And  the  plaintifif  further  shows  unto  your  honors  that  the 

said  C.  D,  departed  this  life  on  or  about  the day  of , 

without  having  revoked  or  altered  his  said  will,  leaving  his 
brother,  E.  D.,  of,  etc.,  the  defendant  hereinafter  named,  his 
heir  at  law ;  and  upon  the  death  of  the  said  testator,  the  plain- 
tiff, under  and  by  virtue  of  the  said  will,  entered  upon  and 
took  possession  of  all  the  said  freehold  estates  thereby  devised 
to  the  plaintiff  for  life,  and  the  plaintiff  is  now  in  possession 
thereof.  And  the  plaintiff  hoped  that  no  disputes  would  have 
arisen  respecting  the  devises  contained  in  the  said  will  or  the 
validity  thereof.  But  now  so  it  is,  etc.,  the  said  E.  D.  pre- 
tends that  the  said  will  is  void  and  ineffectual;  and  although 
he  will  not  dispute  the  validity  thereof  during  the  lives  of  the 
subscribing  witnesses  thereto,  yet  he  threatens  and  intends  to 
do  so  when  they  are  dead,  so  that  the  plaintiff  may  be  de- 
prived of  their  testimony.  ' 

And  the  plaintiff  further  showeth  that  all  of  the  said  sub- 
scribing witnesses  are  upwards  of  seventy  years  of  age  and 
in  feeble  health  [or,  are  about  to  depart  from  the  United 
States],  and  that  the  plaintiff  fears  the  testimony  of  the  said 
witnesses  may  be  lost  by  their  death  [or,  departure  from  the 
United  States]  before  the  cause  can  be  investigated  in  a  court 
of  law. 

In  consideration  whereof,  etc. ;  and  that  the  plaintiff  may 
be  at  liberty  to  have  the  several  subscribing  witnesses  to  said 
will  examined,  and  that  the  plaintiff,  if  necessary,  may  have 
a  commission  or  commissions  for  the  examination  of  the  said 
subscribing  witnesses  to  the  said  will,  to  the  end  that  their 
testimony  may  be  preserved  and  perpetuated ;  and  that  the 


792  SUTIS    IN    EQUITY. 

plaintiff  may  be  at  -liberty  to  read  and  make  use  of  the  same 
on  all  future  occasions,  as  he  shall  be  advised. 
[Verification  (2)] 

(1)  Foster's  Fed.  Prac,  5th  ed.,  sec.  345  and  cases  cited. 

(2)  See  Story's  Eq.  Pleading,  Sec.  305. 


No.  489. 

Receiver's  Supplemental  1)  and  Ancillary  Bill  to  Enjoin  Suit 
in  State  Court — Conflict  of  Jurisdiction. 

[Caption.] 

Floyd  McGown,  receiver  of  the  San  Antonio  Land  &  Irri- 
gation Company,  Limited,  plaintiff,  brings  this  supplemental 
and  ancillary  bill  in  the  nature  of  an  original  bill  against 
Jesse  D.  Oppenheimer,  Abraham  Lang  and  Isaac  Lang,  de- 
fendants, citizens  of  the  state  of  Texas  and  residents  of  Bexar 
county,  Texas,  and  for  cause  of  action  shows : 

That  by  a  decree  duly  entered  in  the  above  cause  on  the 
12th  day  of  August,  1914,  the  San  Antonio  Land  &  Irriga- 
tion Company,  Limited,  and  all  of  its  properties,  real,  personal 
and  mixed,  were  placed  in  the  custody,  management  and  con- 
trol of  your  receiver,  who  has  duly  qualified,  and  is  now  act- 
ing as  such  receiver  under  the  orders  of  this  court;  and  the 
title  to  all  of  said  properties  were  divested  out  of  the  San 
Antonio  Land  &  Irrigation  Company,  Limited,  and  vested  in 
your  receiver  as  an  officer  of  this  court ;  and  he  was  directed 
to  take  immediate  possession  and  charge  and  the  management 
and  control  under  orders  of  the  court  of  all  of  said  properties 
and  to  hold  and  administer  the  same  as  an  officer  of  this  court 
under  its  orders  and  direction. 

And  under  the  said  decree  he  was  empowered  to  institute 
and  prosecute  all  such  suits  by  supplemental  and  ancillary  bills 
herein  or  in  other  courts  of  competent  jurisdiction  as  might 
be  necessary  for  the  protection  and  preservation  of  or  to  re- 
duce to  possession  the  properties,  rights  and  assets  of  said 
defendant  company,  and  in  accordance  with  said  decree  in  the 


BILLS    NOT    ORIGINAL.  793 

exercise  of  the  power  so  conferred  upon  him,  your  receiver 
files  this  supplemental  and  ancillary  bill  in  the  nature  of  an 
original  bill  against  the  defendants  herein  and  for  cause  of 
action  respectfully  shows : 

1.  That  at  the  time  of  the  appointment  of  your  receiver, 
the  defendant  corporation  owned  and  was  in  possession  of  the 
property  hereinafter  described,  and  upon  his  qualification  as 
receiver  said  property  passed  into  the  possession  and  control 
and  management  of  your  receiver  and  this  court. 

2.  That  heretofore,  to-wit,  on  the  first  day  of  March,  1912, 
the  defendants  conveyed  to  Franz  C.  Groos,  William  Aubrey 
and  Leroy  W.  Baldwin,  trustees,  all  those  certain  tracts  or 
parcels  of  land  lying  and  being  situated  in  the  state  of  Texas, 
county  of  Frio,  and  being  out  of  that  tract  known  as  the  Key- 
stone ranch  or  Keystone  pasture.  The  tracts  hereby  conveyed 
containing  in  the  aggregate  at  least  nine  thousand  six  hundred 
and  sixty-nine  and  6/10  (9669.6)  acres,  and  being  arranged 
in  three  blocks  and  described  as  follows ;     *     *     * 

That  said  Aubrey,  Groos  and  Baldwin  purchased  and  held 
said  property  in  trust  for  the  San  Antonio  Land  &  Irrigation 
Company  and  had  no  personal  interest  therein,  and  that  all 
of  the  consideration  paid  in  cash  for  the  property  was  fur- 
nished and  paid  by  the  said  company,  and  that  said  property 
was  and  is  covered  by  the  lien  renewing  the  first  mortgage 
bonds  of  said  company. 

3.  That  the  persons  for  whom  said  grantees  were  acting, 
viz.,  said  irrigation  company  and  the  bondholders  whose 
money  had  been  received  by  said  company  by  the  sale  of  its 
bonds,  paid  to  the  defendants  for  said  property  the  sum  of 
$45,044  in  cash,  and  the  said  trustees  as  such  executed  and 
delivered  to  the  defendants  for  the  balance  of  the  purchase 
money  for  said  land  two  vendor's  lien  notes,  dated  March  1, 
1912,  each  for  the  sum  of  $50,000,  wherein  they  promised  to 
pay  to  the  defendants  on  or  before  eighteen  months  after  date, 
with  interest  thereon  from  date  until  paid  at  the  rate  of  six 
per  cent,  per  annum,  the  interest  to  be  paid  semi-annually, 
said  two  notes  for  $50,000  each,  the  payment  of  which  notes 


794  SUTIS    IN    EQUITY. 

was  secured  by  a  vendor's  Hen  upon  the  above  described  prop- 
erty, expressly  retained  in  the  one  conveying  the  property  to 
the  said  trustees. 

That  because  of  an  error  in  the  quantity  of  land  conveyed 
one  of  said  notes  was  credited  with  the  sum  of  $4,956  on 
March  1.  1912,  leaving  a  balance  due  thereon  of  $95,044; 
that  the  interest  upon  said  note  was  paid  as  It  matured  at  the 
rate  of  six  per  cent,  per  annum  up  to  September  1,  1913,  at 
which  date  by  agreement  made  between  the  parties  the  interest 
rate  was  increased  to  eight  per  cent,  for  the  period  "com- 
mencing the  first  day  of  September,  1913,  and  ending  the  first 
day  of  March,  1914,  making  the  entire  interest  charge  on  said 
notes  for  said  period  at  eight  per  cent,  per  annum,"  and  there- 
after the  interest  was  paid  at  the  rate  of  eight  per  cent,  per 
annum  up  to  March  1,  1914,  making  the  total  amount  of  in- 
terest paid  upon  said  note  $12,355.76.  That  before  the  next 
interest  payment  became  due,  the  defendant  company  was 
placed  in  the  hands  of  your  receiver,  since  which  time  the 
earnings  of  the  defendant  company  through  the  receivership 
and  under  the  management  of  this  court  have  not  been  suf- 
ficient to  pay  any  part  of  the  interest  accruing  upon  said  in- 
debtedness, but  your  receiver  represents  that  the  property  is 
of  the  reasonable  value  of  $20  an  acre,  and  that  the  defendant 
company  and  your  receiver  have  an  equity  therein  of  approxi- 
mately $50,000  in  addition  to  the  $45,044  cash  paid  to  the 
defendants  when  the  land  was  purchased. 

And  your  receiver  represents  to  the  court  that  he  is  in- 
formed and  believes  that  the  parties  interested  in  the  defend- 
ant corporation  will,  upon  the  reorganization  of  said  corpora- 
tion or  the  sale  of  its  properties  to  satisfy  its  bonded  indebted- 
ness, pay  off  and  discharge  the  balance  due  to  the  defendants 
as  purchase  money  for  said  land. 

4.  That  the  said  trustees  answered  in  this  cause  admitting 
that  they  held  the  legal  title  in  trust  and  subject  to  the  mort- 
gage being  foreclosed  by  the  plaintiff  herein,  and  on  the  29th 
day  of  January,  1917,  a  judgment  was  entered  foreclosing  the 
mortgage  upon  said  properties  among  others,  and  these -de- 


BILLS    NOT    ORIGINAL.  795 

fendarrts  hold  their  lien  subject  to  the  exclusive  right  of  the 
court  to  control,  manage  and  administer  the  estate  of  the  San 
Antonio  Land  &  Irrigation  Company,  Limited. 

5.  That  on  the  16th  of  April,  1917,  the  defendants  filed  in 
the  district  court  of  the  seventy-third  judicia!  district  of  the 
state  of  Texas,  in  Cause  No.  B- 14079,  styled  upon  the  docket 
of  said  court,  Jessie  D.  Oppenheimer  et  al.  v.  Leroy  W.  Bald- 
v^in  et  al,,  a  suit  against  Franz  C.  Groos,  William  Aubrey, 
Leroy  W,  Baldwin,  the  aforesaid  trustees  holding  the  legal 
title  San  Antonio  Land  &  Irrigation  Company,  Limited,  Me- 
dina Irrigation  Company,  Medina  Valley  Irrigation  Company, 
Medina  Townsite  Company,  Pacific  Securities  Company,  Em- 
pire Trust  Company,  plaintifif  in  this  suit  and  the  trustee  in 
the  mortgage  foreclosed  herein,  S.  J.  Brooks,  Floyd  McGown, 
receiver,  acting  under  the  orders  of  this  court,  and  Frederick 
R.  Swift,  in  trespass  to  try  title  to  recover  the  title  to  and 
the  possession  of  the  above  described  property,  or  in  the  alter- 
native to  foreclose  the  vendor's  lien  held  by  them  for  the 
balance  of  the  purchase  money  due  for  said  land,  and  also 
to  recover  a  large  sum  as  attorney's  fees,  and  defendants  must 
answer  therein  on  or  before  June  5,  1917,  or  plaintiffs  will 
enter  judgment  by  default  against  them  unless  the  writ  herein 
asked  be  granted. 

And  said  defendants  are  wrongfully  interfering  with  the 
possession  of  this  court  and  its  exclusive  jurisdiction  over  said 
property  and  are  unlawfully  seeking  to  deprive  this  court  from 
administering  upon  said  property  as  a  part  of  the  estate  now 
being  administered  by  it  through  your  receiver  as  the  property 
of  the  San  Antonio  Land  &  Irrigation  Company,  Limited, 
and  the  property  upon  which  tlie  Empire  Trust  Company, 
trustee,  has  foreclosed  its  mortgage  for  the  purpose  of  satisfy- 
ing the  debts  due  from  the  San  Antonio  Land  &  Irrigation 
Company,  Limited,  to  the  bondholders  secured  by  said  mort' 
gage,  and  are  thus  wrongfully  interfering  with  your  receiver 
and  this  court  in  the  possession  and  control  of  said  property; 
and  that  the  suit  instituted  by  them  results  in  a  multiplicity 
of  suits,  a  complication  of  the  title  to  the  property  and  a  con- 


796  SUTIS    IN    EQUITY. 

flict  between  the  jurisdiction  of  the  state  and  federal  court, 
and  will  necessarily  involve  the  expenditure  of  large  sums  of 
money  on  the  part  of  your  receiver  to  protect  and  conserve 
the  estate  being  administered  by  this  court. 

6.  Wherefore,  plaintiff  having  no  sufficient  remedy  at  law 
for  the  wrongs  done  and  threatened  to  be  done  by  said  de- 
fendants, and  because  the  injuries  inflicted  by  the  defendants 
will  be  irreparable,  to  the  end  that  he  may  obtain  the  relief 
which  he  is  entitled  to  in  the  premises,  prays : 

(l)That  writs  of  subpoena  be  granted  to  plaintiff,  directed 
to  the  above-named  defendants,  residing  as  above  stated,  re- 
quiring them  and  each  of  them  to  personally  appear  on  a  day 
certain  before  this  court  and  full,  true,  direct  and  perfect  an- 
swers make  to  all  and  singular  the  premises,  but  not  under 
oath,  which  is  expressly  waived ;  and  further  to  perform  and 
abide  by  such  other  orders,  directions  or  decrees  herein  as  to 
the  court  may  seem  proper. 

(2)  That  upon  considering  this  bill  your  honor  enter  an 
order  (pending  a  hearing  upon  plaintiff's  application  for  in- 
junction, notice  of  which  has  been  given)  restraining  the  de- 
fendants and  each  of  them  from  the  further  prosecution  of  the 
above  numbered  and  styled  cause  in  the  state  court ;  from 
further  interfering  with  your  receiver  in  the  possession,  man- 
agement and  control  of  the  property,  and  from  further  inter- 
fering with  this  court  in  the  possession  and  control  of  said 
property ;  and  that  upon  hearing  of  his  motion,  a  temporary 
injunction  issue  restraining  the  defendants  from  further  prose- 
cuting said  suit  in  the  state  court  and  further  interfering  with 
your  receiver  and  this  court  in  the  possession  and  control  of 
said  property  pending  the  hearing  and  determination  by  this 
court  of  the  claim  or  title  asserted  by  said  defendants  in  their 
answers  filed  herein,  and  that  at  said  hearing  the  court  ad- 
judge said  defendants  respectively  guilty  of  contempt  for  so 
unlawfully  interfering  with  the  property  in  its  possession  and 
control,  and  punish  them  in  such  manner  as  in  its  judgment 
may  be  commensurate  and  proper. 


BILLS    NOT    ORIGINAL.  797 

And  that  the  defendants  be  directed,  to  the  end  that  the 
same  may  be  justly  adjudicated  and  determined  by  this  court, 
to  set  forth  in  their  several  answers  what  adverse  claim  or 
demand  they  may  have,  claim  or  assert  to  said  land. 

Your  petitioner  prays  for  such  other  relief,  general  and 
special,  as  may  be  deemed  proper  and  appropriate  by  the  court 
in  this  proceeding,  or  as  may  be  hereafter  from  time  to  time 
prayed  for  by  your  j)etitioner. 

And  so  he  will  ever  pray.  Floyd  McGown, 

Receiver  San  Antonio  Land  &  Irrigation  Co.,  Ltd. 
By  Denman,  Franklin  &  McGown, 

[  VeriH  cation.']  Attorneys. 

(1)  Equity  Rules  34  and  35  recognize  supplemental  pleading;  Rule  34 
permits  such  pleading  where  material  facts  were  unknown,  or  have  arisen 
since  the  original  pleading.  .Rule  35  provides  that  it  shall  not  be  necessary 
in  a  supplemental  bill  to  set  forth  any  oi  the  statements  in  the  original  suit. 

These  rules  have  not  been  made  the  subject  of  judicial  discussion,  and 
Rule  34  alone  has  been  referred  to,  in  Marconi  Co.  v.  Kilbourne  Co.,  235 
Fed.  719,   where  a  supplemental  answer  was  permitted  under  conditions . 
clearly  indicated  by  the  rule,  namely,  the  subsequent  filing  of  other  suits 
in  other  jurisdictions  against  the  same  defendant,  to  harass  him. 

If  the  plaintiff's  original  bill  is  sufficient  to  entitle  him  to  one  kind 
of  relief,  and  facts  subsequently  occur  to  entitle  him  to  other  and  more 
extensive  relief,  he  may  have  such  relief  by  setting  out  the  new  matter 
in  the  form  of  a  supplemental  bill,  although  the  nature  of  the  action 
would  thereby  be  changed.    General  Inv.  Co.  v.  Ry.  Co.,  250  Fed.  160,  1'76. 


No.  490. 

(1)  Ancillary  Bill  by  Defendant  in  Pending  Suit  at  Law  for 
Money,  to  Determine  Conflicting  Claims,  Plaintiff  Ad- 
mitting Possession  in  Itself. 

[Caption.'] 

Your  plaintiff,  the  Sherman  National  Bank  of  New  York, 
a  citizen  of  the  state  of  New  York,  and  a  resident  of  the 
county  of  New  York  in  said  state,  brings  this  its  bill  of  com- 
plaint against  the  defendants  above  named  by  its  solicitor, 
Rutger  Bleecker  Miller,  and  thereupon  complains  and  alleges 
as  follows : 


798  SUTIS    IN    EQUITY, 

1.  On  information  and  belief,  this  is  a  suit  of  a  civil  nature, 
wherein  the  matter  and  amount  in  dispute,  exclusive  of  inter- 
est and  costs,  exceeds  the  sum  of  or  value  of  three  thousand 
dollars  ($3,000),  and  relates  to  a  fund  of  eleven  thousand 
nine  hundred  and  thirty-eight  and  30/100  dollars  ($11,938.- 
30),  which  is  the  subject-matter  of  an  action  at  law  now  pend- 
ing in  this  court,  wherein  plaintiff  is  the  defendant  and  the 
Shubert  Theatrical  Company,  a  New  Jersey  corporation,  one 
of  the  defendants  above  named,  is  the  plaintiff.  Said  fund 
plaintiff  admits  is  in  its  possession  and  plaintiff  desires  the 
directions  of  this  honorable  court  as  to  the  disposition  thereof, 
and  therefore  brings  this  ancillary  bill  in  equity,  as  a  court  of 
law  is  unable  to  make  a  complete  determination  of  the  claims 
relating  thereto. 

2.  Plaintiff  as  a  corporation  duly  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  United  States,  con- 
stituting it  a  corporation  under  the  national  banking  act,  and 
has  its  principal  place  of  business  in  the  borough  of  Man- 
hattan in  the  county  of  New  York  in  the  city  of  New  York 
and  the  state  of  New  York. 

3.  The  summons  and  complaint  in  said  action,  brought  by 
said  Shubert  Theatrical  Company  (the  New  Jersey  corpora- 
tion), was  served  upon  plaintiff  on  the  2d  day  of  August, 
1915,  and  thereafter  plaintiff  appeared  in  said  action  by  its 
attorney  (the  solicitor  for  the  complainant  herein)  and  served 
its  answer  to  said  complaint  on  the  20th  day  of  August,  1915. 
Thereafter  and  on  the  7th  day  of  September,  1915,  said  Shu- 
bert Theatrical  Company  (the  New  Jersey  corporation)  served 
therein  an  amended  complaint,  a  copy  of  which  is  attached 
hereto  designated  as  "Exhibit  A,"  and  hereby  referred  to  and 
made  a  part  hereof  as  though  herein  set  forth  at  length. 
Thereafter  and  on  the  27th  day  of  September,  1915,  plaintiff 
served  its  answer  to  said  amended  complaint  upon  said  Shu- 
bert Theatrical  Company  (the  New  Jersey  corporation),  a 
copy  of  which  said  answer  is  attached  hereto  designated  as 
"Exhibit  B,"  and  hereby  referred  to  and  made  a  part  hereof 
as  though  herein  set  forth  at  length. 


BILLS    NOT    ORIGINAL.  799 

4.  On  information  and  belief,  in  the  month  of  March,  1912, 
Theodore  A.  Liebler  and  George  C.  Tyler  were  co-partners 
doing  business  under  the  firm  name  of  Liebler  &  Company; 
prior  to  the  12th  day  of  March,  1912,  the  said  Theodore  A. 
Liebler  and  George  C.  Tyler  as  such  co-partners  had  borrowed 
from  plaintiff  various  sums  of  money,  which  said  loans  so 
made  by  plaintiff  to  said  firm  were  evidenced  by  several 
promissory  notes  executed  by  said  firm,  and  duly  delivered 
by  said  firm  to  plaintiff  as  follows : 

A  note  for  $10,000,  executed  on  or  about  the  1st  day  of 
December,  1911 ; 

A  note  for  $10,000,  executed  on  or  about  the  2d  day  of 
February,  1912,  and 

A  note  for  $5,000,  executed  on  or  about  the  11th  day  of 
March,  1912 ;  which  said  notes  duly  evidenced  loans  aggre- 
gating $25,000,  theretofore  made  by  plaintiff  to  said  firm. 

5.  On  information  and  belief,  the  defendant,  the  Welden 
National  Bank  of  St.  Albans,  is,  and  at  all  the  times  herein 
mentioned  was,  a  corporation  duly  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  United  States,  incor- 
porated under  the  national  banking  act,  and  conducting  the 
business  of  banking  in  the  city  of  St.  Albans  in  the  state  of 
Vermont. 

6.  On  information  and  belief,  prior  to  the  12th  day  of  May, 
1912,  said  Welden  National  Bank  of  St.  Albans  had  loaned 
to  said  Theodore  A.  Liebler  and  George  C.  Tyler,  as  such  co- 
partners of  the  firm  of  Liebler  &  Company,  various  sums  of 
money  aggregating  the  sum  of  $15,000,  which  said  loans 
were  on  said  date  evidenced  by  three  several  notes,  each  in 
the  sum  of  $5,000,  one  dated  December  11,  1911,  one  dated 
January  26,  1912,  and  one  dated  February  9,  1912. 

7.  On  information  and  belief,  the  defendant,  Shubert  The- 
atrical Company  (the  New  York  corporation),  is  and  at  all 
the  times  hereinafter  mentioned  was  a  corporation  organized 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
New  York,  and  engaged  in  the  business  of  conducting  and 
exhibiting  theatrical  productions. 


800  SUTIS    IN    EQUITY. 

8.  On  information  and  belief,  the  defendant,  Shubert  The- 
atrical Company  (the  New  Jersey  corporation),  is  and  at  all 
the  times  hereinafter  mentioned  was  a  corporation  organized 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
New  Jersey,  and  engaged  in  the  business  of  conducting  and 
exhibiting  theatrical  productions. 

9.  On  information  and  belief,  said  Lee  Shubert  and  said 
Jacob  J.  Shubert  are  and  were  at  all  times  herein  mentioned 
stockholders  in  and  directors  and  officers  of,  and  the  principal 
owners  of,  and  in  control  of  both  said  corporations  called 
"Shubert  Theatrical  Company" — the  New  York  corporation 
and  the  New  Jersey  corporation,  said  Lee  Shubert  being  presi- 
dent of  both  of  said  corporations. 

10.  On  information  and  belief,  on  or  about  the  17th  day  of 
October,  1910,  said  Theodore  A.  Liebler  and  George  C.  Tyler, 
as  co-partners  constituting  the  firm  of  said  Liebler  &  Com- 
pany, entered  into  an  agreement  with  said  Lee  Shubert  acting 
on  behalf  of  said  Shubert  Theatrical  Company  (the  New  York 
corporation),  whereby  said  Shubert  Theatrical  Company  (the 
New  York  corporation)  undertook  and  agreed,  in  considera- 
tion of  services  to  be  rendered  by  said  Liebler  &  Company  in 
connection  with  the  production  of  a  certain  play  called  "The 
Blue  Bird,"  and  other  good  and  valuable  consideration,  to  pay 
over  from  time  to  time  to  said  Liebler  &  Company  one-half 
of  the  profits  of  said  production  during  its  presentation  in 
places  other  than  the  New  Theatre  in  New  York  City  for  so 
long  a  period  as  said  production  proved  to  be  profitable. 

IL  On  information  and  belief,  thereafter  said  Shubert  The- 
atrical Company  (the  New  York  corporation)  engaged  in  the 
presentation  of  said  production  called  "The  Blue  Bird"  for  a 
period  of  several  years  thereafter,  during  which  period  the 
presentation  of  said  production  proved  and  continued  to  be  a 
profitable  venture,  and  by  virtue  thereof  said  partnership  of 
Liebler  &  Company  became  entitled  under  said  agreement  to 
a  share  of  the  profits  accruing  by  reason  of  said  presentation. 

12.  On  information  and  belief,  during  the  month  of  No- 
vember,  1911,  said  Lee  Shubert  and  said  Jacob  J.  Shubert, 


BILLS    NOT    ORIGINAL.  801 

acting  in  their  own  names,  opened  a  deposit  account  with 
plaintiff,  wherein  from  time  to  time  thereafter  up  to  and  in- 
cluding- the  month  of  December,  1914,  there  were  deposited 
sums  of  money,  which  said  deposit  account  was,  as  agreed 
upon  between  said  Lee  Shubert  and  said  Jacob  J.  Shubert  and 
plaintiff,  designated  on  the  books  of  plaintiff  as  "The  Blue 
Bird  Company  Special"  account,  and  checks  on  said  account 
were,  pursuant  to  said  agreement,  authorized  to  be  drawn  in 
said  name  when  duly  signed  by  either  said  Lee  Shubert  or 
said  Jacob  J.  Shubert,  and  from  time  to  time  thereafter  checks 
so  signed  were  drawn  by  said  Lee  Shubert  and  said  Jacob  J. 
Shubert,  and  honored  by  plaintiff,  and  duly  paid  out  of  the 
funds  theretofore  deposited  to  the  credit  of  said  account.  At 
no  time  prior  to  the  commencement  of  said  action  at  law 
against  plaintiff  by  said  Shubert  Theatrical  Company  (the 
'New  Jersey  corporation)  was  plaintiff  ever  informed  that  said 
corporation  had  any  interest  in  said  "The  Blue  Bird  Com- 
pany Special  Account." 

13.  On  information  and  belief,  at  the  time  of  the  opening 
of  said  account  by  said  Lee  Shubert  and  said  Jacob  J.  Shubert 
with  plaintiff,  said  Lee  Shubert  and  said  Jacob  J.  Shubert  in- 
formed plaintiff  that  the  moneys  deposited  and  to  be  deposited 
in  said  account  represented  profits  accruing  from  the  presenta- 
tion of  said  production,  "The  Blue  Bird,"  under  the  terms  of 
an  arrangement  which  the  said  Shuberts  had  theretofore  made 
with  said  Liebler  &  Company. 

14.  On  information  and  belief,  on  or  about  the  15th  day  of 
March,  1912,  said  Theodore  A.  Liebler  and  said  George  C. 
Tyler,  as  such  co-partners  of  said  firm  of  Liebler  &  Company, 
duly  executed  and  delivered  to  plaintiff  and  to  the  defendant, 
the  Welden  National  Bank  of  St.  Albans,  Vermont,  a  certain 
assignment  whereby  said  Liebler  &  Company,  for  value  re- 
ceived, assigned,  transferred  and  set  over  unto  plaintiff  and 
said  defendant,  the  Welden  National  Bank  of  St.  Albans,  as 
security  for  the  repayment  to  said  two  banks  of  the  amounts 
respectively  due  from  said  firm  on  their  notes  then  outstand- 
ing and  in  the  hands  of  said  two  banks,  or  such  renewals  of 


802  SUITS    IN    EQUITY. 

said  notes  as  might  thereafter  be  made,  fifty  per  cent,  of  the 
interest  of  said  partnership  (that  is  to  say,  twenty-five  per 
cent,  or  one- fourth  of  the  whole)  in  any  and  all  moneys  accru- 
ing and  to  accrue  thereafter  to  said  Liebler  &  Company  as 
profits  by  reason  of  the  presentation  of  said  production,  "The 
Blue  Bird,"  for  the  theatrical  seasons  of  1912-1913  and  1913- 
1914,  to  the  extent  of  the  amount  due  or  thereafter  to  become 
due  on  said  notes  or  any  renewals  thereof.  A  copy  of  said 
assignment,  marked  "Exhibit  C,"  is  attached  hereto,  and  is 
hereby  made  a  part  hereof  as  though  herein  set  forth  at 
length. 

15.  The  notes  of  said  Liebler  &  Company  which,  at  the 
time  said  assignment  was  executed,  were  outstanding  in  the 
hands  of  plaintiff  were,  from  time  to  time  thereafter  renewed, 
in  whole  or  in  part,  until  on  the  4th  day  of  December,  1914, 
there  was  due  and  owing  from  said  Liebler  &  Company  to 
plaintiff  on  two  notes  of  said  Liebler  &  Company,  which  con- 
stituted in  part  renewals  of  said  notes  evidencing  the  indebted- 
ness outstanding  on  said  12th  day  of  March,  1911,  the  sum 
of  eight  thousand  two  hundred  and  fifty  dollars  ($8,250), 
which  said  amount  of  indebtedness  was  evidenced  by  two  cer- 
tain notes,  one  executed  by  said  firm  of  Liebler  &  Company 
and  dated  on  or  about  the  13th  day  of  November,  1914,  in 
the  sum  of  $4,250,  and  one  dated  on  or  about  the  19th  day  of 
November,  1914,  in  the  sum  of  $4,000;  on  information  and 
belief,  neither  of  said  notes  has  ever  been  paid,  nor  has  any 
payment  been  received  by  plaintiff  on  account  thereof  except 
the  sum  of  ninety-eight  and  5/100  dollars  ($98.05). 

16.  On  information  and  belief,  said  indebtedness  of  said 
Liebler  &  Company  to  said  defendant,  the  Welden  National 
Bank  of  St.  Albans,  continued  to  remain  outstanding  at  all 
times  up  to  and  including  the  4th  day  of  December,  1914,  and 
at  that  time  was  evidenced  by  a  note  which  constituted  a  re- 
newal of  said  three  notes  hereinabove  described,  made  to  said 
Welden  National  Bank  of  St.  Albans  by  said  Liebler  &  Com- 
pany prior  to  the  12th  day  of  March,  1912,  which  said  note 
was  in  the  sum  of  $15,000,  and  dated  the  13th  day  of  August, 


BILLS    NOT   ORIGINAL.  803 

1914,  safd  note  being  executed  in  the  name  of  a  certain  cor- 
poration called  "The  Liebler  Company,"  but  bearing  the  en- 
dorsement of  said  Theodore  A.  Liebler  and  George  C.  Tyler. 
No  part  of  said  note  has  been  paid  except  the  sum  of  four 
hundred  ninety-six  and  55/100  dollars  ($496.55). 

17.  On  information  and  belief,  on  or  about  the  4th  day  of 
December,  1914,  an  involuntary  petition  in  bankruptcy  was 
filed  with  this  honorable  court  against  said  Theodore  A.  Lieb- 
ler and  said  George  C.  Tyler  individually,  and  as  co-partners 
doing  business  under  the  firm  name  of  Liebler  &  Company, 
and  thereafter  and  on  or  about  the  31st  day  of  March,  1915, 
said  Theodore  A.  Liebler  and  George  C.  Tyler,  individually 
and  as  co-partners  doing  business  under  the  firm  name  of 
Liebler  &  Company,  were  duly  adjudicated  bankrupt. 

18.  On  information  and  belief,  that  at  some  time  after  said 
31st  day  of  March,  1915,  the  defendant,  Irving  M.  Ditten- 
hoefer,  was  duly  chosen  as  trustee  in  bankruptcy  of  said  Theo- 
dore A.  Liebler  and  George  C.  Tyler,  individually  and  as  said 
co-partners  under  the  firm  name  of  Liebler  &  Company,  and 
duly  qualified  as  such  and  is  still  acting  as  such  trustee. 

19.  On  information  and  belief,  said  Theodore  A.  Liebler 
and  said  George  C.  Tyler,  as  co-partners  under  the  firm 
name  of  Liebler  &  Company,  prior  to  said  4th  day  of  Decem- 
ber, 1914,  made  demand  upon  said  Lee  Shubert,  said  Jacob  J. 
Shubert,  and  said  Shubert  Theatrical  Company  (the  New 
York  corporation)  for  an  accounting  the  profits  accruing  by 
reason  of  the  presentation  of  said  production,  "The  Blue 
Bird" ;  subsequently  to  said  4th  day  of  December,  1914,  and 
prior  to  the  commencement  of  this  action,  plaintiff  made  de- 
mand for  such  an  accounting  upon  said  Lee  Shubert,  said 
Jacob  J.  Shubert  and  said  Shubert  Theatrical  Company  (the 
New  York  corporation)  ;  but  neither  said  Lee  Shubert,  Jacob 
J.  Shubert,  nor  said  Shubert  Theatrical  Company  (the  New 
York  corporation),  nor  any  other  person,  has  ever  made  any 
accounting  of  the  profits  so  accruing  from  the  presentation  of 
said  production. 


804  SUITS   IX    EQUITY. 

20.  On  and  prior  to  the  7th  day  of  December,  1914,  plain- 
tiff had  received  certain  funds  to  the  credit  of  said  account, 
designated  as  "The  Blue  Bird  Company  Special,"  of  which 
sum  so  dieposited  there  remained  undrawn  on  said  7th  day  of 
December,  1914,  by  checks  duly  executed  as  hereinbefore  set 
forth,  the  sum  of  eleven  thousand  seven  hundred  and  ninety- 
nine  and  18/100  dollars  ($11,799.18). 

21.  On  or  about  the  7th  day  of  December,  1914,  plaintiff 
was  served  by  said  Irving  M.  Dittenhoefer,  who  was  then  the 
receiver  in  bankruptcy  of  said  Theodore  A.  Liebler  and 
George  C.  Tyler,  as  such  co-partners,  with  a  certified  copy  of 
the  order  of  this  honorable  court  appointing  him,  which  said 
order  restrained  all  persons  from  paying  out  any  funds  in 
which  said  firm  of  Liebler  &  Company  had  or  claimed  any 
interest,  until  the  further  order  of  said  court,  and  said  order 
has  at  all  times  since  been  and  now  is  in  full  force  and  effect, 
as  plaintiff  is  informed  and  verily  believes ;  and  a  demand 
was  made  by  said  Dittenhoefer  that  plaintiff  should  retain 
and  hold  any  all  sums  then  in  its  possession  belonging  to  said 
firm  of  Liebler  &  Company,  or  in  which  said  firm  had  or 
claimed  any  interest.  Thereafter  and  on  or  about  the  7th 
day  of  December,  1914,  plaintiff  duly  notified  said  Irving  M. 
Dittenhoefer  of  its  claim  against  the  interest  of  said  Theo- 
dore A.  Liebler  and  George  C.  Tyler  as  such  co-partners  in 
any  and  all  moneys  accruing  to  said  firm  as  profits  by  reason 
of  the  presentation  of  said  production  of  "The  Blue  Bird," 
for  said  theatrical  seasons  of  1912-1913  and  1913-1914,  by 
virtue  of  said  assignment.     (Exhibit  C.) 

22.  Thereafter,  by  reason  of  said  order  and  of  said  notice 
so  received  from  said  receiver  in  bankruptcy,  which  said  no- 
tice was  subsequently  confirmed  by  said  Irving  M.  Ditten- 
hoefer as  such  trustee  in  bankruptcy  as  aforesaid,  and  by 
reason  of  plaintiff's  own  claim  under  said  assignment  herein- 
above set  forth  (Exhibit  C),  and  by  reason  of  the  failure  of 
said  Lee  Shubert,  said  Jacob  J.  Shubert,  and  said  Shubert 
Theatrical  Company  (the  New  York  corporation)  to  render 
any  account,  plaintiff  has  declined  and  still  declines  to  pay 


BILLS    NOT    ORIGINAL.  805 

over  either  to  said  Lee  Shiibert  or  to  said  Jacob  J.  Shubert, 
or  to  any  other  person,  the  sums  remaining  due  in  said  ac- 
count, designated  as  "The  Blue  Bird  Company  Special,"  and 
by  reason  of  such  refusal  the  aforesaid  action  hereinabove 
described  has  been  brought  by  said  Shubert  Theatrical  Com- 
pany (the  New  Jersey  corporation)  as  an  action  at  law  in 
this  court  against  plaintiff  to  compel  the  payment  by  plaintiff 
to  said  New  Jersey  corporation  of  the  balance  remaining  on 
hand  on  said  5th  day  of  December,  1914,  to  the  credit  of  said 
account,  with  interest  thereon  up  to  the  date  of  the  com- 
mencement of  said  action. 

23.  On  information  and  belief,  said  firm  of  Liebler  &  Com- 
pany had  a  claim  to  said  funds,  or  some  portion  thereof,  in 
said  account  designated  as  "The  Blue  Bird  Company  Spe- 
cial," on  said  4th  day  of  December,  1914,  which  said  interest, 
or  claim,  thereafter  duly  vested,  as  hereinbefore  set  forth,  in 
said  defendant,  Irving  M.  Dittenhoefer,  as  said  trustee  in 
bankruptcy,  and  said  claim  should  properly  be  administered 
in  this  court.  Said  Lee  Shubert  and  said  Jacob  J.  Shubert 
both,  under  the  original  agreement  hereinabove  set  forth, 
had  the  right  to  draw  checks  on  said  account,  and  plaintiff 
has  not  received  any  release  or  any  other  authorization  from 
said  Lee  Shubert  or  said  Jacob  J.  Shubert  authorizing  the 
payment  of  the  balance  remaining  in  said  account  to  said 
Shubert  Theatrical  Company  (the  New  Jersey  corporation), 
or  to  any  other  person.  Said  Shubert  Theatrical  Company 
(the  New  York  corporation)  has,  or  claims,  some  rights  to 
the  proceeds  accruing  from  the  presentation  of  the  said  pro- 
duction called  "The  Blue  Bird,"  which  proceeds,  as  plaintiff 
was  informed  and  verily  believes,  formed  some  part,  if  not 
all,  of  the  funds  so  deposited  in  said  account  designated  "The 
Blue  Bird  Company  Special."  Said  Welden  National  Bank 
claims  some  title  and  interest  in  and  to  said  fund,  and  plain- 
tiff also  claims  some  title  and  interest  in  and  to  said  fund  by 
virtue  of  said  assignment,  hereinabove  set  forth  (Exhibit  C). 
Plaintiff  desires  to  submit  to  the  determination  of  this  honor- 
able court  the  question  of  said  conflicting  and  inconsistent 


806  SUITS   IN   EQUITY. 

claims  in  order  that  said  fund  in  its  hands  may  be  distributed 
in  accordance  with  the  principles  of  equity  and  good  con- 
science, and  hereby  submits  to  the  directions  of  this  honorable 
court,  as  to  its  duty  in  the  premises. 

24.  Plaintiff  is  informed  and  verily  believes  tliat  in  said 
action  at  law  so  brought  by  said  Shubert  Theatrical  Com- 
pany (the  New  Jersey  corporation)  in  this  court,  it  is  not 
possible  for  plaintiff  adequately  to  set  up  its  rights  against 
said  funds,  inasmuch  as  the  only  parties  to  said  proceeding 
are  plaintiff  and  said  The  Shubert  Theatrical  Company  (the 
New  Jersey  corporation).  Plaintiff  has  fully  and  fairly  stated 
all  of  the  facts  and  circumstances  relating  to  the  several  trans- 
actions hereinabove  set  forth  to  its  solicitor  aforesaid,  and 
after  such  full  and  complete  statement  of  such  facts  to  said 
solicitor,  plaintiff  has  been  advised  by  him  that  its  interest 
can  not  properly  be  protected,  nor  can  the  interests  of  the 
other  persons  having,  or  claiming  to  have,  an  interest  in  and 
to  said  fund,  or  some  part  thereof,  without  the  intervention 
of  a  court  of  equity,  and  that  in  order  to  avoid  unnecessary 
expense  arising  out  of  the  multiplicity  of  suits  both  at  law 
and  in  equity,  it  is  necessary  that  this  honorable  court  shall 
take  jurisdiction  of  this  suit  and  bring  all  said  parties  before 
it  for  the  purpose  of  properly  and  adequately  protecting  and 
adjudicating  the  several  rights  of  the  various  parties  herein- 
above mentioned  to  said  fund. 

Inasmuch  as  plaintiff  has  no  adequate  relief  at  law,  but  can 
have  relief  only  in  equity,  plaintiff  files  this  bill  of  complaint 
in  this  honorable  court  as  a  suit  ancillary  to  said  action  at  law 
now  pending,  and  prays  for  equitable  relief  as  follows : 

(1)  That  this  honorable  court  will  enjoin  all  parties  hereto 
from  instituting,  prosecuting  or  continuing  the  prosecution  of 
any  actions,  suits  or  proceedings  at  law  or  in  equity  or  under 
any  statute  against  plaintiff  on  account  of  said  fund  herein- 
above described,  and  particularly  to  stay  said  action  at  law 
brought  by  said  Shubert  Theatrical  Company  (the  New  Jer- 
sey corporation)  against  plaintiff. 


BILLS    NOT    ORIGINAL.  807 

(2)  That  all  persons  claiming  any  interest  in  said  fund  be 
permitted  to  intervene  in  and  become  parties  to  this  suit  if 
and  as  permitted  and  authorized  so  to  do  by  this  honorable 
court. 

(3)  That  this  honorable  court  will  direct  that  said  Shubert 
Theatrical  Company  (the  New  York  corporation)  make  and 
render  an  accounting,  showing  the  state  of  account  between 
it  and  the  said  Theodore  A,  Liebler  and  George  C.  Tyler,  as 
such  co-partners  doing  business  as  Liebler  &  Company,  with 
regard  to  the  profits  obtained  by  reason  of  the  presentation  of 
said  production,  "The  Blue  Bird,"  hereinabove  referred  to, 
to  the  end  that  this  honorable  court  may  determine  the  rights 
and  title  of  the  various  parties  in  and  to  said  fund,  desig- 
nated as  "The  Blue  Bird  Company  Special"  account. 

(4)  That  such  order  shall  be  made  by  this  honorable  court 
as  to  the  services  of  this  bill  of  complaint  and  of  any  order 
that  may  be  made  in  this  suit,  as  may  be  deemed  sufficient 
and  proper  to  this  honorable  court.  That  plaintiff  may  have 
such  other  and  further  relief  in  the  premises  as  the  nature 
and  circumstances  of  the  case  may  require  and  as  to  this 
honorable  court  may  seem  just  and  proper. 

The  Sherman  National  Bank  of  New  York, 

By  Charles  G.  Colyer,  Vice-Pres. 
RuTGER  Bleecker  Miller,  Solicitor  for  Plaintiff. 
[Verification.] 

(1)  For  ancillary  bill  of  complaint.  See  Street  Federal  Equity- 
Practice  vol.  2,  Sees.  1228  to  1255.  Simkins,  A  Federal  Equity  Suit, 
pp.  482  et  seq;  Foster's  Fed.  Prac,  5th  ed.,  pp.  142-151. 


No.  491. 

Of  Revivor(l)   (Before  Decree)  by  the  Administrator  of  the 
Plaintiff  in  the  Original  Suit. 

[Caption  and  introduction,  as  in  an   original  bill.] 

That  J.  A.,  late  of  ,  but  now  deceased,  on  or  about 

,  exhibited  his  original  bill  of  complaint  in  this  honor- 
able court  against  G.  T.,  of  ,  as  the  defendant  thereto, 


SUITS   IN    EQUITY. 

thereby  stating,  etc.,  praying,  etc.  [Here  state  the  prayer.] 
And  the  plaintifif  further  shows  unto  your  honors  that  the 
said  defendant,  having  been  duly  sei-ved  with  process  for 
that  purpose,  appeared  and  put  in  his  answer  to  said  bill,  as 
in  and  by  the  said  original  bill,  etc.  And  the  plaintiff  further 
shows  that  some  proceedings  have  been  had  before  C.  G., 
one  of  the  masters  of  this  court,  to  whom  this  cause  stands 
referred,  but  no  general  report  has  yet  been  made  in  the  said 

cause ;  and  that  the  said  J.  A.  lately  and  on  or  about  the 

•day  of  ,  departed  this  life,  having  first  made  and  pub- 
lished his  last  will  and  testament  in  writing,  bearing  date  the 

day  of ,  and  a  codicil  thereto  bearing  date  the 

day  of ,  and  thereby  appointed  M.  C.  and  W.  W.  execu^- 

tors  thereof. 

And  the  plaintiff  further  shows  that  the  said  M.  C.  and 
W.  W.  have  renounced  probate  of  the  said  will  and  codicil 
of  the  said  J.  A.,  deceased,  and  decline  to  act  in  the  trusts 
thereof,  and  that  the  plaintiff  has  obtained  letters  of  adminis- 
tration with  the  will  annexed  of  the  goods,  chattels,  rights 
and  credits  of  the  said  J.  A.,  deceased,  to  be  granted  to  him 
by  and  out  of  the  proper  court,  and  has  thereby  become  and 
now  is  his  legal  personal  representative. 

And  the  plaintiff  further  shows  that  the  said  suit  and  pro- 
ceedings have  become  abated  by  the  death  of  the  said  J.  A., 
and  the  plaintiff  is,  as  he  is  advised,  entitled  to  have  the  said 
suit  and  proceedings  revived  against  the  said  defendant,  G. 
T.,  and  the  said  accounts  by  the  aforesaid  order  of  reference 
directed,  prosecuted  and  carried  on,  and  to  have  the  said 
cause  put  in  the  same  plight  and  condition  as  the  same  was 
in  previously  to  the  abatement  thereof  by  the  death  of  said 
J.  A. 

To  the  end,  therefore,  that  the  said  defendant  may  answer 
the  premises ;  and  that  the  said  suit  and  proceedings  which 
so  became  abated  as  aforesaid  may  stand  revived,  and  be  in 
the  same  state  and  condition  as  the  same  were  in- at  the  time 
of  the  death  of  the  said  J.  A.,  or  that  the  defendant  may 
show  good  cause  to  the  contrary.     May  it  please  your  honors 


BILLS    NOT    ORIGINAL.  809 

to  grant  unto  the  plaintiff  a  writ  of  subpoena  to  revive  [and 
answer],  issuing  out  of  and  under  the  seal  of  this  honorable 
court,  to  be  directed  to  the  said  G.  T.,  thereby  commanding 
him  at  a  certain  day  and  under  a  certain  penalty,  to  be  there- 
in limited,  personally  to  be  and  appear  before  your  honors,  in 
this  honorable  court,  then  and  there  [to  answer  the  premises 
and]  to  show  cause,  if  he  can,  why  the  said  suit  and  the  p;'o- 
ceedings  therein  had,  should  not  stand  and  be  revived  against 
him,  and  be  in  the  same  plight  and  condition  as  the  same  were 
in  at  the  time  of  the  abatement  thereof;  and  further,  to  stand 
to  and  to  abide  such  order  and  decree  in  the  premises  as  to 
your  honors  shall  seem  meet.  And  the  plaintiff  shall  ever 
pray,  etc. 

[Where  it  is  only  necessary  to  pray  a  subpoena  to  revive, 
the  words  within  brackets  should  be  omitted.] 

(1)  For  requisites  for  a  bill  of  revivor,  consult  Beach's  Modern  Eq. 
Prac,  Sec.  486;  Foster's  Fed.  Prac,  5th  ed.,  Sec.  223-  Upon  a  bill  of 
revivor  the  sole  questions  before  the  court  are,  the  competency  of  the 
parties  and  the  correctness  of  the  bill  to  revive.  Geieral  objections  to 
the  original  bill,  grounded  on  its  not  showing  a  proper  case  for  the 
interference  of  a  court  of  equity,  should  be  reserved  until  after  the 
revivor  of  the  bill.  Bettes  v.  Dana,  2  Sumn.  383.  Compare  Oliver  v. 
Decatur,  4  Cranch  C.  C.  592;  Kennedy  v.  Bank  of  Georgia,  8  How.  586, 
See  Equity  Rules  35  and  45. 


No.  492. 

Bill  of  Revivor  in  Patent  Suit. 

To  the   Honorable   the  Judge  of  the  District  Court  of  the 
United  States  for  the District  of . 

The  A.  B.  Company,  a  corporation  organized  under  and 
pursuant  to  the  laws  of  the  state  of ,  and  having  its  prin- 
cipal place  of  business  in  the  city  of  ,  in  said  state,  and 

being  an  inhabitant  of  the  city  of  in  said  state,  brings 

this  its  bill  of  revivor  against  L.  H.,  E.  H.  and  J.  B.,  as 
executors  of  the  last  will  and  testament  of  S.  H.,  deceased, 
and  J.  R.  and  H.  H.,  surviving  trustees,  and  N.  R.,  residuary 
legatee  under  the  last  will  and  testament  of  D.  H.,  deceased. 


810  SUITS   IN    EQUITY. 

Said  L.  H.,  J.  B.,  E.  H.,  J.  R.,  H.  H.  and  N.  R.,  being  citi- 
zens of  the  state  of and  residents  of  the  city  of ,  in 

said  state;  and  thereupon  plaintiff  complains  and  says  that  on 

or  about  the day  of ,  it  filed  a  bill  in  equity  in  this 

court  against  S.  H.  and  D.  H.,  alleging  infringement  by 
them  of  certain  letters  patent  of  the  United  States,  which 
w^re  numbered  No.  130,961  and  dated  August  27,  1872,  of 
which  it  was  at  that  time,  and  is  now,  the  owner. 

That  thereafter  the  said  S.  H,  and  D.  H.,  having  been 
duly  served  with  the  writ  of  subpoena,  appeared  by  counsel 
and  filed  their  answer  to  said  bill  of  complaint,  to  which  an- 
swer a  replication  was  filed  on  the  part  of  plaintiff. 

That  thereafter  plaintiff  proceeded  to  take  proofs  in  sup- 
port of  its  said  bill  of  complaint ;  and  thereafter  said  defend- 
ants proceeded  to  take  proofs  in  support  of  their  said  answer 
and  in  defense  of  said  actions. 

That  thereafter  said  suit  was  brought  to  final  hearing  be- 
fore the  Honorable  G.  R. ;  that  said  judge  filed  his  decision 

on  the  day  of  ,  adjudging  invalidity  of  the  fifth 

claim  of  the  patent — ^being  the  claim  in  suit — and  dismissing 
the  said  bill  of  complaint,  as  by  reference  to  said  decision 
reported  in ,  will  more  fully  and  at  large  appear. 

That  thereafter  plaintiff  appealed  to  the  United  States  cir- 
cuit court  of  appeals  for  the  circuit  from  the  decision 

of  the  district  court  for  the  district  of  ;  that  the 

said  appeal  was  argued  before  said  court,  and  a  decision  made 
"by  said  court,  the  opinion  being  written  by  Hon.  H.  R.,  ad- 
judging the  validity  of  said  patent  and  that  defendants  had 
infringed  the  same  and  remanded  the  cause  to  this  court, 
ordering  a  decree  against  said  defendants  restraining  them 
from  further  infringement,  and  also  granting  a  reference  to  a 
master  to  ascertain  and  report  damages  and  profit  caused  by 
said  infringement — all  of  which  will  more  fully  and  at  large 
appear  by  reference  to  said  decision  reported  in  . 

That  thereafter  the  accounting  in  this  cause  was  commenced 
and  voluminous  proofs  taken. 


BILLS    NOT   ORIGINAL,  ^  811 


That  thereafter  the  master  filed  his  report  awarding  nomi- 
nal damages  to  plaintiff  against  said  defendants. 

That  thereafter,  on  exceptions  duly  filed  to  said  report, 
argument  was  had  before  his  honor,  G.  R.,  on  motion  to  con- 
firm said  master's  report;  that  said  judge  filed  an  opinion  on 

the  day  of  ,  recommitting  said  accounting  to  the 

master  for  further  action  in  accordance  with  said  opinion. 
That  no  order  has  yet  been  entered  on  Judge  R.'s  decision. 

That  during  the  pendency  of  said  accounting  the  defendant, 
D.  H.,  died,  leaving  a  last  will  and  testament,  which,  on  the 

■  day  of  ,  was  admitted  to  probate  in  the  probate 

court  of county,  ,  and  letters  executory  thereupon 

were  on  said  day  of ,  duly  issued  out  of  said  pro- 
bate court  unto  S.  H.,  J.  R.  and  H.  H. 

That  said  will,  after  directing  the  payment  of  an  incon- 
siderable percentage  of  the  testator's  estate  as  specified  lega- 
cies to  certain  persons  therein  named,  directed  the  said  ex- 
executors  to  hold  in  trust  for  the  benefit  of  the  testator's 
grandchildren,  for  a  period  of  time  that  has  not  yet  expired, 
the  sum  of  one  million  and  five  hundred  thousand  dollars,  and 
to  pay  the  rest  and  residue  of  testator's  estate  unto  his  daugh- 
ter, N.  R. 

That  on  the  day  of  ,  said  executors  filed  their 

final  accounting  in  the  office  of  the  clerk  of  the  probate  court 

of  the  county  of  ,  whereby  it  appeared  that  they  had 

paid  said  specific  legacies,  and  that  after  paying  to  N.  R. 
aforesaid  a  sum  amounting  to  between  three  and  four  millions 
of  dollars,  they  still  retained  in  trust  for  the  benefit  of  said 
grandchildren  of  said  testator  the  sum  of  one  million  and  five 
hundred  thousand  dollars. 

That  said  account  was  approved  by  said  surrogate  and  an 

order  was  entered  in  the  said  probate  court  on  the  day 

of  ,  discharging  and  releasing  said  S.  H.,  J.  R.  and  H. 

H.  from  the  duties  as  executors  under  said  last  will  and 
testament,  but  directing  them  to  continue  to  hold  said  trust 
fund  of  one  million  and  five  hundred  thousand  dollars  as 
directed  in  said  last  w-ill  and  testament. 


812  SUITS    IN    EQUITY. 

That  said  S.  H.,  J,  R.  and  H.  H.  thenceforth  continued 
to  so  act  as  trustees  under  said  will  as  to  said  trust  fund,  and 
said  J.  R.  and  H.  H.  are  now  so  acting. 

That  the  aforesaid  S.  H.  died  upon  the  day  of , 

leaving  a  last  will  and  testament,  which  on  the  day  of 

,  was  admitted  to  probate  in  the  probate  court  of  

county,  ,  and  letters  executory  thereupon  were  on  said 

day  of ,  duly  issued  out  of  said'  probate  court  unto 

L.  H.,  E.  H.  and  J.  B.,  and  still  remain  in  full  force  and 
virtue. 

Wherefore  plaintiff  prays  that  the  said  cause  may  be  re- 
vived by  the  decree  of  this  honorable  court,  and  that  it  may 
proceed  to  a  decree  in  its  favor  in  accordance  with  the  prayer 
of  the  original  bill  of  complaint  herein. 

Plaintiff  further  prays  that  a  writ  of  subpoena  may  issue  in 
due  form  of  law,  directed  to  the  aforesaid  defendants,  L.  H., 
E.  H.  and  J.  B.,  as  exccutrices  and  executor  of  the  estate  of 
S.  H.,  deceased,  and  J.  R.  and  H.  H.,  as  trustees,  and  N.  R., 
as  residuary  legatee  under  the  will  of  D.  H.,  deceased,  and 
requiring  them  to  appear  and  show  cause,  if  any  they  have, 
why  this  cause  should  not  be  revived;  and  if  no  cause  shall 
be  shown  by  said  defendants  why  said  suit  should  not  be 
revived,  that  a  decree  be  entered  reviving  said  suit  in  favor  ot 
plaintiff.  A.  B.  Company, 

By  G.  S.,  President. 

X.  &  X., 

Solicitors  and  of  Counsel  for  Complainant. 

State  of ,  County  of ,  ss. 

G.  S.,  being  duly  sworn,  says  that  he  resides  in  the  city  and 

county  of ,  and  is  the  president  of  the  A.  B.  Company, 

the  complainant  herein;  that  he  has  read  the  foregoing  bill 
of  revivor  and  knows  the  contents  thereof,  and' that  the  same 
is  true  to  his  own  knowledge. 

Deponent  further  says  that  the  reason  why  this  verification 


BILLS    NOT    ORIGINAL.  813 

is  not  made  by  the  complaint  is  that  it  is  a  corporation;  that 
deponent  is  an  officer  of  tlie  same,  to-wit,  president. 

G.  S. 

Sworn  to  before  me  this day  of ,  A.  D.  . 

[Seal]  A.  G., 

Notary  Public,  •  County,  . 


No.  493. 

Of  Revivor  and  Supplement  Where  Both  Parties  in 
Original  Bill  are  Deceased.  (1) 

[Caption  and  introduction,  as  in  an  origin<il  bill.] 

That  A.   B.  and   S.   B.   are  the  executors  named  and  ap- 
pointed in  and  by  the  last  will  and  testament  of  H.  W.,  late 

of,  etc.,  deceased,  that  on  or  about  the day  of  July, , 

the  said  H.  W.  exhibited  his  bill  of  complaint  in  this  honor- 
able court  against  T.  W.,  late  of,  etc.,  deceased,  thereby  pray- 
ing that  the  said  T.  W.  might  be  decreed  by  this  honorable 
court  to  come  to  a  just  and  fair  account  with  the  said  H.  W. 
for  the  principal  and  interest  then  due  and  owing  to  him  on 
the  mortgage  security  in  the  said  bill  mentioned,  and  might 
pay  the  same  to  the  said  H.  W.  by  a  short  day  to  be  appoint-: 
ed  by  this  honorable  court,  together  with  his  costs;  and  in 
default  thereof,  that  the  said  T.  W.  might  stand  absolutely 
barred  and  foreclosed  of  and  from  all  manner  of  benefit  and 
advantage  of  redemption  or  claim  in  or  to  the  residue  of  the 
respective  mortgaged  premises  in  the  said  bill  mentioned,  and' 
every  part  thereof.  And  the  said  defendant,  T.  W.,  having 
been  duly  served  with  process,  appeared  thereto,  and  departed 

this  life  on  or  about  the  day  of  ,  without  having 

put  in  his  answer  to  the  said  bill. 

And  plaintiffs  show  unto  your  honors  by  way  of  supple- 
ment to  the  said  original  bill,  that  the  said  defendant,  T.  W., 
departed  this  life  intestate,  leaving  his  wife,  E.  W.,  a  defend- 
ant hereinafter  named,  enceinte  with  a  child  since  born  and 
named  A.  W.,  and  the  said  A.  \\\  is  now  the  sole  heiress  at 


814  SUITS    IN    EQUITY. 

law  of  the  said  T.  W.,  deceased,  and  a^  such  entitled  to  the 
equity  of  redemption  oi  the  said  mortgaged  premises. 

That  on  or  about  the day  of , ,  letters  of  ad- 
ministration of  the  goods,   chattels   and   effects   of  the   said 

T.  W.,  deceased,  were  duly  granted  by  the  court  of unto 

his  widow,  the  said  E.  W.,  who  is  thereby  become  his  sole 
personal  representative. 

That  the  said  complainant,  H.  W.,  departed  this  life  on  or 

about  the day  of ,  having  previously  duly  made  and 

published  his  last  will  and  testament  in  writing,  bearing  date 

on  or  about  the  day  of  ,  and  thereof  appointed 

plaintiffs  joint  executors;  and  on  or  about  the  day  of 

,  plaintiffs  duly  proved  the  said  will  in  the  said  court  of 

,  and  took  upon  themselves  the  burden  of  the  execution 

thereof. 

That  upon  the  death  of  the  said  H.  W.  the  said  mortgaged 
premises  became  and  the  same  are  now  vested  absolutely  at 
law  in  plaintiffs  as  his  legal  personal  representatives,  subject 
nevertheless  to  redemption,  on  payment  of  the  principal  money 
and  interest  thereby  secured. 

That  the  said  suit  having  become  abated  by  the  death  of 
the  said  T.  W.,  plaintiffs  are  advised  that  they,  as  the  per- 
sonal representatives  of  the  said  H.  W.,  deceased,  are  entitled 
to  have  the  same  revived  and  restored  as  against  the  said 
E.  W.  and  A.  W.  to  the  same  plight  and  condition  in  which 
it  was  at  the  time  of  the  death  of  the  said  T.  W.,  and  to  have 
the  same  relief  against  the  said  E.  W.  and  A.  "W. 

Wherefore  plaintiffs  pray  that  the  said  E.  W.  and  A.  W. 
may  answer  the  said  original  bill,  and  that  they  may  be  de- 
creed by  this  honorable  court  to  come  to  a  just  and  fair 
account  with  plaintiffs  for  the  principal  and  interest  now  due 
and  owing  to  them  on  the  said  mortgage  securities,  and  may 
pay  the  same  to  plaintiffs  by  a  short  day  to  be  appointed  by 
this  honorable  court,  together  with  their  costs,  and  in  default 
thereof  that  the  said  defendants  may  stand  and  may  be  abso- 
lutely barred  and  foreclosed  of  and  from  all  manner  of  benefit 
or  advantage  of  redemption  or  claim  in  or  to  the  said  mort- 


BILLS    NOT   ORIGINAL.  815 

gaged  premises,  and  every  part  thereof;  and  that  the  said  suit 
may  stand  and  be  revived  against  the  said  defendants,  and  be 
in  the  same  pHght  and  condition  in  which  the  same  was  at 
the  time  of  the  decease  of  the  said  defendant,  T.  W.,  or  that 
the  said  E.  W.  and  A.  W.,  respectively,  may  show  good  cause 
to  the  contrary. 

(1)  See  Equity  Rules  34  and  35. 


No.  494. 

Of  Review  to  Examine  and  Reverse  a  Decree.  (1) 

[Caption  and  introduction.] 

That  in term,  in  the  year ,  W.  S.,  of,  etc.   (the 

defendant  hereinafter  named),  exhibited  his  bill  of  complaint 
in  this  honorable  court  against  plaintiff,  and  thereby  set  forth 
that,  etc.  [here  insert  the  original  bill].  And  plaintiff  being 
served  with  a  subpoena  for  that  purpose,  appeared  and  put  in 
his  answer  to  the  said  bill,  to  the  effect  following:  [Here 
recite  the  substance  of  the  anszver.]  And  the  said  W.  S. 
replied  to  the  said  answer,  and  issue  having  been  joined,  and 
witnesses  examined,  and  publication  duly  passed,  the  said 
cause  was  set  down  to  be  heard,  and  was  before  your  honors, 

the  day  of  last,  when  a  decree  was  pronounced, 

which  was  afterwards  passed  and  entered,  in  which  it  was  set 
forth  and  recited,  that  it  was  at  the  hearing,  on  plaintiff's 
behalf,  insisted  that  plaintiff  had,  by  his  answer,  set  forth 
that,  etc.   [here  insert  the  recital  and  decree].     And  the  said 

decree  has  since,  and  on  or  about ,  been  duly  signed  and 

enrolled,  and  which  said  decree  plaintiff  humbly  insists  in 
erroneous,  and  ought  to  be  reviewed,  reversed  and  set  aside 
for  many  apparent  errors  and  imperfections,  inasmuch  as  it 
appears  by  plaintiff's  answer,  set  forth  in  the  body  of  the  said 
decree  [here  insert  the  apparent  errors].  And  no  proof  being 
made  thereof,  no  decree  ought  to  have  been  made  or  grounded 
thereon;  but  the  said  bill  ought  to  have  been  dismissed  for 
the  reasons  aforesaid.     In  consideration  whereof,  and  inas- 


816  SUITS   IN    EQUITY. 

much  as  such  errors  and  imperfections  appear  in  the  body  of 
the  said  decree,  and  there  is  no  proof  on  which  to  ground  any 
decree  to  set  aside  the  said  rent-charge,  plaintiff  hopes  that 
the  said  decree  will  be  reversed  and  set  aside,  and  no  further 
proceedings  had  thereon.  Wherefore  plaintiff  prays  that  for 
the  reasons  and  under  the  circumstances  aforesaid,  the  said 
decree  may  be  reviewed,  reversed  and  set  aside,  and  no  fur- 
ther proceedings  taken  thereon,  and  plaintiff  permitted  to 
remain  in  the  undisturbed  possession  and  enjoyment  of  the 
said  rent-charge. 

(1)  To  authorize  a  bill  of  review,  under  either  the  English  or 
American  practice,  error  must  appear  on  the  face  of  the  decree  or 
pleadings,  and  the  evidence  at  large  can  not  be  gone  into.  Seguin  v. 
Maverick,  76  Am.  Dec.  117.  And  leave  of  the  court  must  be  obtained 
before  filing  the  bill.  Simpson  v.  Watts,  62  Am.  Dec.  392.  Consult 
Beach's  Modern  Eq.  Prac,  Sees.  852  et  seq. 


No.  495. 

Petition  to  Appellate  Court  for  Leave  to  File  Bill  of  Reviewt 
for  New  Matter  in  Court  Below. 

The  United   States  Circuit   Court  of  Appeals   for  the  ■ 

Circuit. 


C  of  Review. 


H.  K.,  Extr.,  ct  al,  Petitioner  -^        .  .  .    /-i    t>-ii 

/  Petition  for  leave  to  file  Bill 
vs. 

R.  R.,  Respondent. 

To  the  Honorable  the  Judges  of  said  court : 

H.  K.,  executrix  of  the  estate  of  F.  A.,  deceased,  and  a 

citizen  and  resident  of  the  state  of ,  on  behalf  of  herself 

and  of  T.  B.,  H.  K.  and  L.  R.,  as  heirs  at  law  of  F.  A.,  de- 
ceased, all  citizens  and  residents  of  the  state  of  ,  and  on 

behalf  of  aU  the  other  heirs  at  law  of  the  said  F.  A.,  deceased, 
such  other  heirs  being  numerous  and  their  names  and  places 
of  residence  being  unknown,  brings  this  her  petition  against 
R.  A.,  a  citizen  and  resident  of  the  state  of  ,  and  re- 
spectfully shows  unto  the  court : 


BILLS    NOT    ORIGINAL.  817 

First.  That  petitioner  has  prepared  and  presents  herewith 
a  bill  of  review  against  defendant,  which  petitioner  asks  may 
be  treated  as  a  part  of  this  petition,  and  reference  made  there- 
to for  its  contents,  and  which  petitioner  is  advised  she  has  a 
right  to  file  in  the  district  court  of  the  United  States  for  the 

district  of ,  upon  leave  first  had  and  obtained  from 

this  honorable  court. 

Second.  That  petitioner  has  set  out  in  said  bill  of  review, 
exhibited  herewith,  the  substance  of  the  decree  which  peti- 
tioner seeks  to  have  reviewed  in  said  district  court,  and  the 
pleadings  upon  which  said  decree  was  based,  and  petitioner 
now  asks  for  leave  to  file  said  bill  of  review. 

Third.  Petitioner  avers  that  on  or  about  the  day  of 

,  A.  D. ,  defendant  herein,  R.  A.,  filed  in  the  district 

court  of  the  United  States  for  the  district  of  ,  a 

bill  against  petitioner  and  others  seeking  a  rescission  of  a 
certain  sale  of  14,804  acres  of  mountain  lands  lying  in  Frank- 
lin county, ,  which  had,  on  or  about ,  been  sold  and 

conveyed  to  said  R.  A.  by  F.  A.,  of  whose  estate  petitioner 
was  at  the  time  of  filing  of  said  bill,  and  is  now,  the  executrix, 
under  the  last  will  and  testament  of  said  Anderson ;  that  after 
prolonged  litigation,  a  correct  and  succinct  history  of  which 
and  of  the  various  steps  taken  in  the  cause  is  set  out  in  the 
bill  of  review  exhibited  herewith,  a  decree  was  finally  pro- 
nounced in  favor  of  said  R.  A.  against  petitioner,  in  which 
it  was  decreed  by  the  court  that  said  sale  should  be  rescinded, 
and  the  lands  described  therein  should  be  reconveyed  by  com- 
plainant R.  A.  to  petitioner,  and  that  he  should  have  and  re- 
cover of  petitioner  the  sum  of  $ .    To  secure  the  pa)nnent 

of  said  recovery,  a  lien  was  declared  on  the  lands  which  the 
said  Alger  was  ordered  in  said  decree  to  reconvey  to  peti- 
tioner upon  the  payment  of  said  judgment.  In  default  of 
payment  of  said  decree  within  thirty  days,  a  sale  of  said  lands 
was  ordered  in  satisfaction  of  the  lien  aforesaid.  Said  de- 
cree was  entered  by  said  district  court  on  the  day  of 

.     Said  decree  was  not  paid,  petitioner  having  no  means 

with  which  to  pay  same,  the  lands  were  sold  an(4  bought  in  by 


818  SUITS   IN    EQUITY. 

complainant  R.  A.  for  the  sum  of  $ ,  and  the  decree  cred- 
ited with  the  amount  of  his  bid.  Subsequently  complainant 
R.  A.  proceeded  against  the  estate  of  F.  A.,  deceased,  for  the 
satisfaction  of  the  balance  of  his  said  decree,  and  said  estate, 
both  personal  and  real,  was  exhausted  in  the  effort  to  satisfy 
said  decree,  and  there  still  remains  a  balance  due  thereon 
amounting  to  more  than  $ . 

Fourth.  Petitioner  avers   that  since  the   rendition   of  said 

decree  of  the day  of ,  she  has  discovered  that  prior 

thereto,  and  during  the  pendency  of  the  suit  brought  by  com- 
plainant R.  A.  as  aforesaid,  said  R.  A.  has  sold  and  conveyed 

the  mountain  lands  above  referred  to,  to  A.  T.,  of ,  for 

a  consideration  amounting,  petitioner  is  informed  and  be- 
lieves, to  the  sum  of  $ ,  and  could  not  therefore  at  the 

time  of  the  rendition  of  the  decree  aforesaid  directing  him  to 
reconvey  said  lands  to  petitioner,  have  carried  out  the  orders 
of  the  court,  even  if  petitioner  had  paid  off  said  decree.  Peti- 
tioner avers  that  said  lands  were  sold  as  aforesaid  to  the  said 

A.  T.  some  time  in  the  month  of ,  and  a  deed  executed 

therefor  by  the  said  R.  A.  to  the  said  A.  T.,  but  that  said 
deed,  on  the  advice  of  D.  M.,  one  of  the  attorneys  of  the  said 
R.  A.,  was  not  recorded,  the  said  D.  M.  giving  as  his  reason  to 
said  A.  T.  for  advising  against  the  recording  of  the  deed  at 
that  time,  that  the  placing  of  such  a  deed  on  record  might 
complicate  efforts  the  said  R.  A.  was  then  making  to  clear  up 
the  title  to  the  land. 

Petitioner  is  informed,  and  so  charges,  that  said  original 
deed  was  thereupon  destroyed  and  that  after  the  entry  of  the 

decree  of  ,  aforesaid,  and  after  the  sale  thereunder  of 

said  mountain  lands  and  the  bidding  in  of  the  same  by  said 
R.  A.,  a  new  deed  was  executed  and  placed  on  record  in  the 
register's  office  of  Franklin  county,  ,  on  .  convey- 
ing said  lands  to  said  A.  T.  The  consideration  recited  in 
said  deed  is  "one  dollar  and  other  valuable  considerations 
then  paid."  Petitioner  is  infomied,  and  so  charges,  that  no 
new  consideration  passed  from  said  A.  T.  to  said  R.  A.  at 
the  time  of  the  execution  of  said  last-named  deed,  but  that 


BILLS    NOT    ORIGINAL.  819 

the  consideration  therefor  was  the  original  consideration  which 
passed  from  the  said  A.  T.  to  said  R.  A.  at  or  about  the  time 

of  the  execution  of  the  first  deed,  in  ,  and  that  the  said 

R.  A.  has  been  ever  since  the  time  of  the  sale  of  said  lands  by 
him  to  said  A.  T.,  in ,  in  the  full  enjoyment  of  said  con- 
sideration. 

Petitioner  is  advised  and  charges  that  the  act  of  said  R.  A. 
in  making  a  sale  of  said  mountain  lands  to  the  said  A.  T.  in 
1897,  was  a  positive  ratification  of  the  purchase  by  R.  A.  from 
F.  A.,  which  purchase  the  said  R.  A.  was  then  seeking  to  re- 
scind, and  that  said  act  was  such  a  parting  with  the  title  to 
said  lands  as  then  and  there  estopped  the  said  R.  A.  from  pur- 
suing further  his  suit  to  rescind. 

Petitioner  is  advised,  and  so  charges,  that  if  the  facts  with 
reference  to  said  sale  by  R.  A.  to  A.  T.  had  been  known  to 
the  court  at  any  time  before  the  final  decree  in  the  suit  for 
rescission  the  court  would  have  rendered  no  judgment  against 
her,  but  would  have  denied  defendant  R.  A.  the  relief  sought, 
and  have  dismissed  his  said  bill.  Petitioner  avers  that  said 
facts  with  reference  to  said  sale  by  defendant  R.  A.  were 
purposely  concealed  from  the  court  and  from  petitioner,  and 
a  fraud  thereby  worked  upon  petitioner  in  that  she  was  pre- 
vented from  taking  advantage  of  her  legal  right  to  have  had 
suit  for  rescission  dismissed  because  of  said  act  of  defendant 
R.  A.  in  making  a  sale  of  said  lands  during  the  pendency  of 
said  suit. 

Petitioner  avers  that  the  defendant  R.  A.,  by  the  sale  of 
said  lands  to  said  A.  T.  as  aforesaid,  and  the  concealment  of 
the  fact  from  petitioner,  has  thereby  through  the  instrumental- 
ity of  the  court,  done  the  petitioner  and  the  estate  she  repre- 
sents a  great  wrong,  in  that  after  having  sold  said  lands  to 
the   said   A.    T.    and   received   the  consideration   therefor   in 

,  he  has  again  been  paid  for  these  same  lands  to  the 

extent  the  entire  estate  of  F.  A.  has  proved  sufficiently  to 
satisfy  the  decree  of  the day  of . 

Fifth.  Petitioner  avers  that  prior  to  the  rendition  of  the 
aforesaid  decree  of ,  she  knew  nothing  of  the  sale  of  said 


820  SUITS    IN    EQUITY. 

mountain  lands  hy  defendant  R.  A.  to  A.  T,,  in  February, 

,   as  aforesaid,  and  had   no  means  of  knowing  of  said 

sale,  the  deed  to  said  lands  having  been  withheld  from  the 
record. 

Petitioner  avers  that  the  first  information  she  obtained  with 
reference  to  said  sale,   was   furnished   her  by  the  attorneys, 

Messrs.  X.  &  X.,  of  ,  who  had  represented  petitioner  in 

the  R.  A.  suit  for  rescission  in  the  district  court  aforesaid 
from  the  time  of  the  filing  therein  of  the  petition  to  rehear 
until  the  decision  of  the  case  by  that  court.  Said  attor- 
neys wrote  to  said  petitioner  in  August,  ,   to  come  to 

for  a  conference  with  them.     This  she  did,  and  then  and 

there  learned  for  the  first  time  of  said  sale.  Said  attorneys 
stated  to  her  that  they  had  been  informed  of  the  said  sale  by 
A.  T.  himself,  and  also  by  his  partner  or  business  manager, 

Mr.  A.  F.,  of ,  both  of  whom  had  recently  been  in  

negotiating  a  sale  of  said  lands  which  the  said  A.  T.  was 
then  contemplating  making  to  parties  in  . 

Petitioner  thereupon  employed  said  attorneys  to  investigate 
the  matter  fully,  and  instructed  them  if  they  were  satisfied 
as  to  the  fact  of  such  sale  by  defendant  R.  A.  to  the  said 
A.  T.,  to  take  such  steps  as  they  might  deem  best  for  the 
protection  of  petitioner  and  of  the  estate  she  represents. 

Petitioner  has  no  knowledge  or  information  concerning  said 
sale,  except  such  as  has  come  to  her  through  the  attorneys 
aforesaid,  and  as  they  have  at  first  had  what  has  been  com- 
municated by  them  to  her,  petitioner  hereto  attaches  as  a  part 
of  this  petition,  marked  respectively.  Exhibits  "A"  and  "B," 
the  affidavits  of  two  of  said  attorneys,  namely,  R.  H.  and 
D.  L. 

Sixth.  Premises  considered,  petitioner  prays : 

1.  That  respondent  R.  A.  be  served  with  notice  of  the 
filing  of  this  petition  and  with  printed  copy  thereof  and 
required  to  show  cause  on  a  day  named  why  the  relief  sought 
therein  should  not  be  granted.  If  respondent  R.  A.  can  not 
be  found  within  the  jurisdiction  of  this  honorable  court,  then 
that  notice  be  served  upon  Messrs.  R.  Y.  and  G.  Y.,  or  either 


BILLS    NOT    ORIGINAL.  821 

of  them,  they  being  attorneys  at  law  of ,  and  respondent's 

counsel  in  the  suit  wherein  the  decree  aforesaid  v/as  obtained 
and  still  are  attorneys  of  said  R.  H.  in  matters  pertaining-  to 
said  litigation. 

2.  That  at  the  hearing  an  order  be  made  by  the  court 
granting  petitioner  leave  to  file  against  respondent  R.  A.  in 

the  district  court  of  the  United  States  for  the  district 

of ,  a  bill  of  review  in  behalf  of  petitioner  and  the  other 

complainants  named  therein,  a  copy  of  which  bill  is  attached 
to  and  made  a  part  of  this  petition,  seeking  to  have  reviewed, 

reversed  and  set  aside  a  certain  decree  for  $ pronounced 

by  the  court  against  petitioner  on  the  day  of  ,  in 

the  case  of  R.  A.  v.  H.  K.,  executrix,  etc.,  et  al.,  No.  . 

X.  &  X., 

[Verification.^  Solicitors  for  Petitioner. 

When  it  is  desired  to  file  a  bill  of  review  in  a  district  court  after  an 
appeal  has  been  taken  to  an  appellate  court  and  a  decree  rendered 
in  such  appellate  court  the  application  for  leave  to  file  must  be  made 
to  the  appellate  court.  Southard  v.  Russell,  16  How.  546;  Kingsbury 
V.  Buckner,  134  U.  S.  650-671;  Bank  v.  Taylor,  4  C  C.  A.  55.  53  Fed. 
854;  Shakers  v.  Watson,  77  Fed.  513. 

The  application  is  made  by  petition  for  leave  and  copy  of  the  pro- 
posed bill  of  review  is  regularly  exhibited  to  the  court  with  the  petition. 
The  case  is  docketed  and  copy  of  petition,  bill  of  review  and  evidence 
printed  and  served  on  the  adverse  party  or  his  counsel  of  record 
in  the  original  suit.  An  order  is  taken  fixing  time  for  reply  proofs, 
filing  briefs  and  hearing.  The  case  then  comes  on  for  argument  and 
decree  granting  leave  or  dismissing  the  petition.  Foster's  Fed.  Prac, 
5th  ed.,  Sees.  447  to  450. 


No.  496. 

Petition  for  Leave  to  File  a  Bill  of  Review  for  New 
Matter. 
{Caption.^ 

The  petition  of  A.  B.,  the  above  plaintiflF,  respectfully 
shows  that  on  or  about  the  day  of  ,  your  peti- 
tioner filed  his  bill  in  this  honorable  court  against  C.  D.  for 
the  purpose  of  [state  general  object  of  original  bill],  and  pray- 
ing [state  the  prayer  verbatim]. 


822  SUITS    IN    EQUITY. 

And  your  j)etitioner  further  shows  that  the  said  C.  D., 
being  served  with  process  of  subpoena,  appeared  to  the  said 
bill  and  put  in  his  answer  thereto,  to  which  a  replication  was 
filed.  And  the  said  cause  was  thereupon  examined  on  both 
sides,  and  the  proofs  closed.     And  that  the  said  cause  was 

brought  to  a  hearing  before  your  honor  on  whereupon 

a  decree  was  made  to  the  following  effect  [set  forth  substance 
of  decree]. 

And  your  petitioner  further  shows  that  such  decree  has 
since  been  duly  enrolled. 

And  your  petitioner  further  shows  that  since  the  time  of 
pronouncing  the  said  decree  your  petitioner  hath  discovered 
new  matter  of  consequence  in  the  said  cause;  particularly 
that  E.  F.,  deceased,  the  uncle  of  the  said  C.  D.,  of  whom 
the  said  C.  D.  claims  to  be  sole  heir  at  law,  left  two  sons  and 
a  daughter  him  surviving,  named  respectively,  etc.,  who 
were  his  heirs  at  law;  and  that  such  sons  and  daughter  are 
still  alive  and  residing  at,  etc. ;  which  new  matter  your  peti- 
tioner did  not  know,  and  could  not  by  reasonable  diligence 
have  known,  so  as  to  make  use  thereof  in  the  said  cause,  pre- 
vious to  and  at  the  time  of  pronouncing  the  said  decree. 

Your  petitioner  therefore  prays  that  he  may  be  at  liberty 
to  file  a  bill  of  review  for  the  purpose  of  having  the  said  de- 
cree reviewed,  reversed  and  set  aside,  and  that  no  further 
proceedings  may  be  had  under  the  same. 

And  your  petitioner,  etc. 


No.  497. 

Bill  of  Review  for  New  Matter.  (1)  . 

[Caption  and  introduction.] 

That  on  or  about ,  C.  D.,  of,  etc.,  the  defendant  herein, 

exhibited  his  bill  of  complaint  in  this  honorable  court  against 
the  plaintiff,  and  thereby  set  forth  that,  etc.  [Here  insert  the 
original  bill.]  And  the  plaintiff  being  duly  served  with  process 
for  that  purpose,  appeared  and  put  in  his  answer  to  the  said 


BILLS    NOT    ORIGINAL.  823 

bill,  to  the  effect  following:  [Here  state  the  substance  of  the 
anszver.]  And  the  said  C.  D.  replied  to  the  said  answer,  and 
issue  having  been  joined  and  witnesses  examined,  and  the 
proofs  closed  [or,  the  said  C.  D.  joined  issue  on  the  answer, 
and],  the  said  cause  was  set  down  to  be  heard,  and  was  heard 

before  your  honors,  on  the day  of ,  when  a  decree 

was  pronounced,  whereby  your  honors  decreed  that  the  plain- 
tiff's title  to  the  premises  was  valid  and  effectual,  after  which 
the  said  C.  D.  petitioned  your  honors  for  a  rehearing,  and  the 
said  cause  was  accordingly  reheard,  and  a  decree  of  reversal 
made  by  your  honors  on  the  ground  of  the  said  C.  D.  being 
the  heir  at  law  of  the  said  E.  F.,  deceased,  and  which  said 
decree  of  reversal  was  afterwards  duly  signed  and  enrolled,  as 
by  the  said  decree  and  other  preceedings  now  remaining  filed 
as  of  record  in  this  honorable  court,  reference  being  thereto 
had,  will  appear. 

And  the  plaintiff  shows  unto  your  honors,  by  leave  of  this 
honorable  court  first  had  and  obtained  for  that  purpose,  by 
way  of  supplement,  that  since  the  signing  of  the  said  decree 
of  reversal  the  plaintiff  has  discovered,  as  the  fact  is,  that  the 
said  E.  F.  was,  in  his  lifetime,  seized  in  his  demesne  as  of  fee, 
of  and  in  the  hereditaments  and  premises  in  question  in  the 
said  cause,  and  that  the  said  E.  F.,  while  so  seized,  and  when 
of  sound  mind,  duly  made  and  published  his  last  will  and 

testament  in  writing,  bearing  date  on  the  day  of , 

which  was  executed  by  him,  and  attested  according  to  law, 
and  thereby  gave  and  devised  unto  the  said  J.  W.,  his  heirs 
and  assigns  forever,  to  and  for  his  and  their  own  absolute  use 
and  benefit,  the  said  hereditaments  and  premises  in  question 
in  the  said  cause  (to  which  the  plaintiff  claims  to  be  entitled 
as  purchaser  thereof  from  the  said  J.  W.). 

And  the  plaintiff  further  show^s  unto  your  honors  that  since 
the  said  decree  of  reversal  was  so  made,  signed,  and  enrolled, 

as  aforesaid,  and  on  or  about  ,  the  said  C.  D.  departed 

this  life  intestate,  leaving  G.  H.,  of,  etc.  the  defendant  herein 
his  heir  at  law^  w'ho,  as  such,  claims  to  be  entitled  to  the  said 
hereditaments  and  premises,  in  exclusion  of  the  plaintiff.    And 


824  SUITS   IN    EQUITY. 

the  plaintiff  is  advised  and  insists  that,  under  the  aforesaid 
circumstances,  the  said  last-mentioned  decree,  in  consequence 
of  the  discovery  of  such  new  matter  as  aforesaid,  ought  to  be 
reviewed  and  reversed ;  and  that  the  first  decree  declaring  the 
plaintiff  entitled  to  the  said  hereditaments  and  premises  should 
stand,  and  be  established  and  confirmed;  and  for  effectuating 
the  same,  the  said  several  proceedings,  which  became  abated 
by  the  death  of  the  said  C.  D.,  should  stand  and  be  revived 
against  the  said  G.  H.,  as  his  heir  at  law. 

To  the  end,  therefore,  etc.  And  that  the  said  suit  may  be 
revived  against  the  said  G.  H.,  or  that  he  may  show  good  cause 
to  the  contrary,  and  that  the  said  last  decree,  and  all  proceed- 
ings thereon,  may  be  reviewed  and  reversed,  and  that  the  said 
first-mentioned  decree  may  stand  and  be  established  and  con- 
firmed, and  be  added  to,  by  the  said  will  being  declared  a  good 
and  effectual  devise  of  such  hereditaments  and  premises  as 
aforesaid ;  and  that  the  said  G.  H.  may  be  decreed  to  put  the 
plaintiff  into  possession  of  the  said  hereditaments  and  prem- 
ises, and  in  the  same  situation,  in  every  respect,  as  far  as 
circumstances  will  now  permit,  as  the  plaintiff  would  have 
been  in  case  such  last  decree  had  never  been  pronounced  and 
executed;  and  that  the  plaintiff  may  have  such  other,  etc. 

[Pray  subpoena  to  revive  and  answer  against  the  said  G.  //.] 


No.  498. 

To  Suspend  a  Decree. 

[Caption  and  introduction.'] 

That  plaintiff  in  the  year  borrowed  the  sum  of  

dollars  from  C.  D.,  of ,  the  defendant  herein,  and  in  order 

to  secure  to  the  said  C.  D.  the  repayment  thereof,  with  legal 

interest,  plaintiff,  by  an  indenture  bearing  date  the  day 

of  ,  in  the  year  ,  granted,  bargained,  sold  and  de- 
mised unto  the  said  C.  D.,  his  executors,  administrators  and 
assigns,  all  that  [describe  premises']  for  the  term  of  one  thou- 


BILLS    NOT    ORIGINAL.  825 

sand  years,  subject  to  redemption  on  payment  by  plaintiff  of 

the  said  sum  of dollars  and  interest,  as  therein  mentioned, 

as  by  the  said  indenture,  reference  being  thereunto  had,  will 
more  fully  appear. 

That  the  said  C.  D.,  on  or  about ,  exhibited  his  bill  of 

complaint  in  this  honorable  court  against  plaintiff,  for  pay- 
ment of  what  was  then  due  to  him  for  principal  and  interest  on 
the  said  security,  by  a  short  day  to  be  appointed  for  that  pur- 
pose, or  that  plaintiff  might  be  absolutely  debarred  and  fore- 
closed from  all  right  and  equity  of  redemption  in  the  said  mort- 
gaged premises ;  and  plaintiff  having  put  in  his  answer  thereto, 
and  submitted  to  pay  what  should  appear  to  be  due  from  him, 
the  said  cause  came  on  to  be  heard  before  your  honors  on  or 

about ,  when  it  was  referred  to  R.  V.,  one  of  the  masters 

of  this  honorable  court,  to  take  an  account  of  what  was  so  due 
from  plaintiff  to  the  said  C.  D.,  as  aforesaid,  and  plaintiff  was 

ordered  to  pay  the  same  on  the  day  of ,  or  to  be 

absolutely  foreclosed  of  all  right  and  equity  of  redemption  in 
the  said  mortgaged  premises ;  as  by  the  said  proceedings  now 
remaining  as  of  record  in  this  honorable  court,  reference  being 
thereunto  had.  will  appear. 

That  plaintiff  was  duly  prepared  to  pay  what  should  be  re- 
ported to  be  due  from  him ;  but  before  the  said  master  made 
his  report,  plaintiff  was  sent  in  great  haste,  by  the  commands 
of  his  majesty,  ambassador  to  the  court  of  Paris,  on  special  and 
weighty  affairs  of  state,  which  admitted  of  no  delay ;  and  plain- 
tiff was  therefore  unable  to  make  any  provision  for  the  pay- 
ment of  what  should  be  so  found  due  from  him  as  aforesaid. 

That  the  said  master,  during  plaintiff's  absence,  made  his 

report,  whereby  he  found  that  the  sum  of dollars  was  due 

to  the  said  C.  D.  for  principal  and  interest  from  plaintiff,  but 
no  further  proceedings  have  since  been  taken  in  the  said  cause. 
And  plaintiff  being  ready  and  willing  to  pay  the  said  sum  of 
-  —  dollars  to  the  said  C.  D.,  and  all  subsequent  interest  there- 
on, is  advised,  that  on  payment  thereof,  he  is  entitled  under  the 
circumstances  aforesaid  to  have  so  much  of  the  said  decree  as 
relates  to  the  foreclosure  of  plaintiff's  right  and  equity  of  re- 


826  SUITS   IN    EQUITY. 

demption  in  the  said  mortgaged' premises  suspended,  and  on 
payment  thereof,  to  have  a  reconveyance  of  the  said  mortgaged 
premises  from  the  said  C.  D.  for  the  remainder  of  the  term  so 
granted  to  him  as  aforesaid.  Wherefore  plaintiff  prays  that 
the  subsequent  interest  on  the  said  sum  of dollars,  so  re- 
ported to  be  due  from  plaintiff  as  aforesaid  to  the  present  time, 
may  be  computed  by  the  direction  of  this  honorable  court,  and 
that  on  payment  of  the  said  sum  of dollars,  and  such  in- 
terest as  aforesaid,  the  said  decree  of  foreclosure  may  be  sus- 
pended, and  the  said  C.  D.  directed,  at  the  expense  of  plaintiff, 
to  reconvey  the  said  mortgaged  premises  to  him,  or  as  he  shall 
appoint,  freed  and  absolutely  discharged  from  the  said  mort- 
gage.    [And  for  general  relief.] 


No.  499. 

To  Set  Aside  a  Decree  Obtained  by  Fraud.  (1) 
[Caption  and  introduction^ 

That  T.   B.,   of,   etc.,  deceased,  the  plaintiff's  late  father, 

during  his  life,  and  on  or  about  the  day  of  ,  was 

seized  in  his  demesne,  as  of  fee,  of  and  in  the  real  estate 
hereinafter  particularly  described;  and  by  indenture  of  that 
date,  made  between  the  said  T.  B.  of  the  one  part,  and  C.  D. 
of,  etc.,  the  defendant  herein,  of  the  other  part,  the  said  T. 
B.,  in  consideration  of dollars,  bargained,  sold,  and  con- 
veyed unto  the  said  C.  D.,  his  heirs  and  assigns,  all,  etc.  [de- 
scribe the  mortgage  premises'],  subject  to  redemption  on  pay- 
ment of  the  said  principal  money  and  lawful  interest  at  the 
time  therein  mentioned,  and  long  since  past ;  as  by  the  said  in- 
denture, reference  being  thereto  had,  will  more  fully  appear. 

And  the  plaintiff  further  shows  that  the  said  T.  B.  departed 

this  life  on  or  about ,  leaving  the  plaintiff  his  heir  at  law, 

and  only  child,  then  an  infant  under  twenty-one  years  of  age, 
that  is  to  say,  of  the  age  of  seven  years  or  thereabouts,  him 
surviving. 


BILLS    NOT    ORIGINAL.  827 

And  the  plaintiff  further  shows  that  during  the  plaintiff's 

minority,  on  or  about  ,  the  said  C.   D.  filed  his  bill  of 

complaint  in  this  honorable  court  against  the  plaintiff  for  a' 
foreclosure  of  the  plaintiff's  right  and  equity  of  redemption 
in  the  said  mortgaged  premises;  but  the  plaintiff  was  not 
represented  in  such  bill  to  be  then  an  infant ;  and  the  said  C.  D. 
caused  and  procured  one  L.  M.,  since  deceased,  who  acted  in 
the  management  of  the  affairs  of  the  plaintiff's  said  father, 
to  put  in  an  answer  in  the  name  of  the  plaintiff,  and  without 
ever  acquainting  the  plaintiff,  or  any  of  his  friends  or  rela- 
tions therewith;  in  which  said  answer  a  m.uch  greater  sum 
was  stated  to  be  due  from  the  plaintiff,  on  the  said  mort- 
gage security,  to  the  said  C.  D.,  than  in  fact  was  really  owing 
to  him,  and  for  which  it  was  untruly  stated  that  the  said 
mortgaged  premises  were  an  insufficient  security;  and  in  con- 
sequence of  such  answer  being  put  in,  the  said  C.  D.  after- 
wards, in  conjunction  with  the  said  L.  M.,  on  or  about , 

obtained  an  absolute  decree  of  foreclosure  against  the  plaintiff, 
which  the  plaintiff  has  only  lately  discovered,  and  of  which 
the  plaintiff  had  no  notice,  and  in  which  said  decree  no  day 
is  given  to  the  plaintiff,  who  was  an  infant  when  the  same  was 
pronounced,  to  show  cause  against  it  when  he  came  of  age; 
as  by  the  said  proceedings  now  remaining  as  of  record  in  this 
honorable  court,  reference  thereto  being  had,  will  more  fully 
appear. 

And  the  plaintiff  further  shows  that  the  plaintiff,  on  the 

day  of last,  attained  the  age  of  twenty-one  years, 

and  shortly  afterwards,  having  discovered  that  such  trans^ 
actions  had  taken  place  during  his  minority  as  aforesaid,  by 
himself  and  his  agents,  represented  the  same  to  the  said  C. 
D.,  and  requested  him  to  deliver  up  possession  of  the  said 
mortgaged  premises  to  the  plaintiff,  on  being  paid  the  prin- 
cipal money  and  interest,  if  any,  actually  and  fairly  due 
thereon,  which  the  plaintiff  offered,  and  has  at  all  times 
been  ready  to  pay,  and  which  would  have  been  paid  by  the 
personal  representatives  of  the  said  T.  B.  out  of  his  personal 
assets,   during    the   plaintiff's   minority,    had   any   application 


828  SUITS   IN    EQUITY. 

been  made  for  that  purix)se.  And  the  plaintiff  hoped  that 
the  said  C.  D.  would  not  have  insisted  on  the  said  decree  of 
foreclosure,  so  fraudulently  obtained  as  aforesaid,  but  would 
have  permitted  the  plaintiff  to  redeem  the  said  mortgaged 
premises,  as  he  ought  to  have  done.  But  now  so  it  is,  etc., 
the  said  C.  D.,  etc.,  pretends  that  the  said  decree  of  fore- 
closure was  fairly  and  properly  obtained,  and  that  a  day  was 
therein  given  to  the  plaintiff,  when  of  age,  to  show  cause 
against  the  same,  and  that  the  plaintiff  has  neglected  to  do 
so,  and  that  the  plaintiff  is  neither  entitled  to  redeem,  nor  to 
travel  into  the  said  accounts ;  whereas  the  plaintiff  charges  the 
contrary  thereof  to  be  true,  and  that  the  plaintiff  only  at- 
tained the  age  of  twenty-one  years  on  the  said  day  of 

,  and  that  he  has  since  discovered  the  several  matters 

aforesaid,  by  searching  in  the  proper  offices  of  this  honorable 
court;  and  the  plaintiff  expressly  charges  that,  under  the 
circumstances  aforesaid,  the  said  decree,  so  fraudulently 
obtained,  as  heretofore  mentioned,  ought  to  be  set  aside,  and 
the  plaintiff  ought  not  to  be  precluded  thereby,  or  in  any 
other  manner,  from  redeeming  the  said  mortgaged  premises, 
of  which  the  said  C.  D.  has  possessed  himself,  by  such  means 
as  aforesaid.  All  which  actings,  etc.  In  consideration 
whereof,  etc.  To  the  end,  etc. ;  and  that  the  said  decree  of 
foreclosure  may,  for  the  reasons  and  under  the  circumstances 
aforesaid,  be  set  aside  by  this  honorable  court,  and  declared 
to  be  fraudulent  and  void ;  and  that  an  account  may  be 
taken  of  what,  if  anything,  is  now  due  to  the  said  C.  D.  for 
^principal  and  interest  on  the  said  mortgage;  and  that  an 
account  may  also  be  taken  of  the  rents  and  profits  of  the 
said  mortgaged  premises,  which  have,  or  without  his  \villful 
default  might  have  been,  received  by  or  on  behalf  of  the 
said  C.  D.,  and  if  the  same  shall  appear  to  have  been  more 
than  the  principal  and  interest  due  on  the  said  mortgage, 
then  that  the  residue  thereof  may  be  paid  over  to  the  plain- 
tiff, and  that  the  plaintiff  may  be  at  liberty  to  redeem  the 
said  mortgaged  premises,  on  payment  of  the  principal  and 
interest,    if   any,    remaining   due    on   the    said    security;   and 


BILLS    NOT    ORIGINAL.  829* 

that  the  said  C.  D.  may  be  decreed,  on  being  paid  such  prin- 
cipal money  and  interest,  to  deHver  up  possession  of  the 
said  mortgaged  premises,  free  from  all  encumbrances,  to  the 
plaintiff,  or  as  he  shall  appoint,  and  to  deliver  up  all  title 
deeds  and  writings  relating  thereto.     [General  relief.] 

(1)  See  Beach's  Modern  Eq.  Prac,  Sec.  884,  and  cases  cited. 


No.  500. 

Cross-Bill  (General  Form).(l) 

(1)  Equity  Rule  30  seems  to  abolish  the  crossbill  as  originally 
known  to  equity  practice,  and  Equity  Rule  31  provides  for  service  of 
a  counterclaim  on  any  of  the  defendants  affected  thereby.  See 
generally  the  discussion  in  Hopkins,  New  Federal  Equity  Rules,  2d 
ed.,  pp.   189  to   193;  Foster's   Federal   Practice,   5th   ed.,  pp.   694,  695. 


830  SUITS    IN    EQUITY. 

SUBPOENAS. 

No.  501. 

Subpoena  in  Chancery  (Under  Former  Rules). 

The  United  States  of  America, 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Marshal 
of  the district  of ,  Greeting: 

You  are  hereby  commanded  to  summon  C.  D.,  citizen  of 
and  resident  in  the  state  of  ,  if  he  be  found  in  your  dis- 
trict,  to  be  and  appear  in  the  district  court  of  the  United 

States  for  the district  of aforesaid,  at ,  on  the 

first  Monday  in  next,  to  answer  a  certain  bill  in  chan- 
cery, filed  and  exhibited  in  said  court,  against  C.  D.,  by  A.  B., 

citizen  of  and  resident  in  the  state  of .     Hereof  you  are 

not  to  fail,    under  the   penalty   of   the   law   thence  ensuing. 
And  have  you  then  and  there  this  writ. 

[Add  teste.] 

Memorandum.  ( 1 ) 

The  said  defendant  is  required  to  enter  his  appearance  in 

this  suit  in  the  clerk's  office  of  said  court  on  or  before  the 

first  Monday  of  ,  1894,  otherwise  the  said  bill  may  be 

taken  pro  confesso.  B.   R.,  Clerk. 

(1)  See  12th  Rule  in  Equity  which  differs  from  the  former  Rule  12 
in  requiring  defendant  to  file  his  answer  or  other  defense.  See  the 
next  following  form. 


No.  502. 

(1) Subpoena  and  Return  (Under  Present  Rules). 

United  States  of  America,  ) 

r  ss. 

Eastern  District  of  Wisconsin.  I 

The  President  of  the  United  States  of  America— To  The  City 
of  Milwaukee,  Joseph  P.  Carney,  as  Treasurer  of  said 
City,  and  John  H.  Donahue,  Greeting : 
You  and  hereby  commanded,  that  you  appear  before  the 


SUBPOENAS.  831 

district  court  of  the  United  States  of  America,  for  the  eastern 
district  of  Wisconsin,  in  our  court  of  chancery,  in  and  for 
the  disrtict  aforesaid,  at  Milwaukee,  to  answer  to  a  bill  of 
complaint,  exhibited  against  you  in  our  said  court,  by  Edwin 
H.  Abbot,  Jr. 

And  to  do  further,  and  receive  what  our  said  court  shall 
have  considered  in  that  behalf;  and  this  you  are  not  to  omit 
under  the  penalty  which  may  ensue. 

This  process  of  subpoena  is  returnable  in  the  clerk's  office 
twenty  days  from  the  date  hereof  and  is  directed  to  the  marshal 
of  this  district,  who  is  hereby  commanded  to  serve  the  same 
upon  the  said  the  city  of  Milwaukee,  Joseph  P.  Carney,  as 
treasurer  of  said  city  and  John  H.  Donahue,  if  to  be  found 
in  his  district,  and  due  return  thereof  make. 

Witness  the  Honorable  Ferdinand  A.  Geiger,  Judge  of  the 
district  court  of  the  United  States  for  the  eastern  district  of 
Wisconsin,  at  the  city  of  Milwaukee,  in  said  district,  this  12th 
day  of  February,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  fourteen  and  of  our  Independence  the  one 
hundred  and  38th. 

[Signed]     F.  C.  Westfahl,  Jr., 

Clerk. 
Frank  M.  Hoyt, 

Milwaukee,  Wis. 
Solicitors. 

And  it  is  ordered  by  our  said  court  that  the  said  the  city 
of  Milwaukee,  Joseph  P.  Carney,  as  treasurer  of  said  city 
and  John  H.  Donahue,  the  defendants  aforesaid,  do  file  their 
answer  or  other  defense  in  this  suit  in  the  clerk's  office,  on 
or  before  the  twentieth  day  after  service  of  this  subpoena 
exclusive  of  the  day  of  service ;  otherwise  the  bill  filed  may  be 
taken  as  confessed. 

Served  on  the  within  named  city  of  Milwaukee  by  deliver- 
ing to  G.  A.  Bading,  mayor  and  Peter  Leuch,  clerk  of  said 
city  personally  a  copy  of  this  subpoena,  this  12th  day  of 
February,  A.  D.  1914. 


832  SUITS   IN    EQUITY. 

Served  on  the  within  named  Joseph  P.  Carney  as  treasurer 
of  the  city  of  Milwaukee  and  on  John  H.  Donahue  by  leaving 
a  copy  of  this  subpoena  with  each  of  them  personally  this 
12th  day  of  February,  A.  D.  1914. 

H.  A.  Weil, 

Marshal. 
By  J.  H.  Vebber, 

Deputy. 

(1)  Present  Equity  Rule  12  requires  the  defendant  to  file  his  answer 
or  other  defense  in  the  clerk's  office  on  or  before  the  twentieth  day 
after  service.  The  clerk  as  a  matter  of  course  shall  issue  the  process  of 
subpoena  upon  the  application  of  the  plaintiff. 

Prayer  for  process  is  not  necessary  in  the  bill,  and  no  order  of  the 
court  is  required.  Pittsburg  Water,  etc.,  Co.  v.  Beler  Water,  etc.,  Co., 
222  Fed.  950,  952;  R.  S.  U.  S.  Sees.  911  and  912. 

For  alias  subpoenas  see  Equity  Rule  14,  and  for  the  manner  of 
serving  subpoenas  see  Equity  Rule  13- 


No.  503. 

Subpoena  (Another  Form)  with  Memorandum  Thereon 
Noting  Answer  Day,  and  Return. 

United  States  of  America, 
District  of  Minnesota, 
Third  Division — ss. 

The  President  of  the  United  States  of  America,  to  the  Golden 
Rule,  Incorporated,  Greeting: 
You  are  hereby  commanded  to  appear  before  our  district 
court  of  the  United  States  of  America  for  the  district  of 
Minnesota,  third  division,  at  St.  Paul  in  said  district,  within 
twenty  days  after  the  service  of  this  subpoena  upon  you,  ex- 
clusive of  the  day  of  such  service,  to  answer  the  bill  of  com- 
plaint of  The  B.  V.  D.  Company  this  day  filed  in  the  clerk's 
office  of  said  court,  in  said  St.  Paul  then  and  there  to  receive 
and  abide  by  such  judgment  and  decree  as  shall  then  or  there- 
after be  made,  upon  pain  of  judgment  being  pronounced  against 
you  by  default. 


SUBPOENAS.  833 

For  the  marshal  of  the  United  States  for  the  district  of 
Minnesota  to  execute. 

Witness  the  Honorable  Wilbur  F.  Booth,  Judge  of  the  dis- 
trict court  of  the  United  States  of  America  for  the  district  of 
Minnesota,  and  the  seal  of  said  court  hereunto  affixed.    Issued 
at  St.  Paul  in  said  district  this  7th  day  of  July,  A.  D.  1915. 
[Seal  of  said  court.]  Charles  L.  Spencer, 

Clerk. 
Memorandum. 

The  within  named  defendant  is  notified  that  it  is  required 
to  file  its  answer  or  other  defense  in  the  clerk's  office  of  said 
court,  at  St.  Paul  aforesaid,  on  or  before  the  20th  day  after 
the  service  of  this  subpoena,  excluding  the  day  thereof ;  other- 
wise the  bill  of  complaint  may  be  taken  pro  confesso. 

Charles  L.  Spencer, 

Clerk. 


No.  503a. 

Return  on  Service  of  Writ.(l) 

United  States  of  America, 
District  of  Minnesota — ss. 

I  hereby  certify  and  return  that  I  served  the  annexed  sub- 
poena on  the  therein-named  The  Golden  Rule,  Incorporated, 
by  handing  to  and  leaving  a  true  and  correct  copy  thereof  with 
S.  W.  Dittenhofer,  vice-president  of  above  named  incorpora- 
tion, personally  at  St.  Paul,  in  said  district  on  the  7th  day  of 
July,  A.  D.  1915. 

Wm.  H.  Grimshaw, 

U.  S.  Marshal. 
By  S.  J.  PiCHA, 

Deputy. 

(1)  Equity  Rule  13. 


834  SUITS   IN    EQUITY. 

No.  504. 

Return  of  Subpoena  by  Marshal.  (1) 

United  States  of  America, 
District  of ,  ss. 

Received  this  writ  at  ,  at  o'clock  a.  m.,  on  the 

day  of ,  and  served  the  same  by  handing  a  true  copy 


thereof,  with  the  endorsements  thereon,  to  the  said  C.  D.  per- 
sonally [or  say,  I  left  a  like  copy  thereof,  with  the  endorse- 
ment thereon,  with  an  adult  person  who  is  a  member  (or,  resi- 
dent) of  the  family  of  C.  D.,  at  the  usual  place  of  residence  of 
said  C.  D.]  [In  like  manner  state  service  on  either  defend- 
ants or  witnesses,  if  any  have  been  served.] 

And  the  other  persons  named  in  said  writ  are  "not  found" 

in  said  district  this  day  of  ,   19 — .     The  distance 

from  the  court  to  the  place  of  service  most  remote  therefrom 

is miles ;  and  the  extra  travel  necessary  to  serve  the  other 

persons  named  herein  is miles ;  and  my  actual  and  neces- 
sary expenses  in  serving  this  writ  are,  by  dates  and  items,  as 
follows : 
I  paid  to ,  for ,  $ 


Total  expenses $- 


H.  C. 
U.  S.  Marshal District  of  — 


Per  S.  H., 
Deputy. 

(1)  This  form  of  return  may  he  used  on  any  suhpoena  whether  it  be 
served  upon  a  defendant  or  upon  a  witness  to  testify. 

The  manner  of  serving  a  subpoena  is  prescribed  by  Equity  Rule  13. 
This  rule  must  be  strictly  followed  or  the  service  will  be  defective  and 
will  be  set  aside.  See  Romaine  v.  Union  Ins.  Co.,  28  Fed.  6356  and 
cases  there  collated. 

As  to  service  upon  an  infant  see  O'Hara  v.  McConnell.  93  U.  S.  150; 
Woolridge  v.  McKenna,  8  Fed.  670. 

As  to  service  upon  corporation  see  Shaw  v.  Mining  Co.,  145  U.  S. 
444;  Galveston  Ry.  Co.  v.  Gonzales,  151  U.  S.  496;  So.  Pac.  Co.  v. 
Denton,  146  U.  S.  202. 

As  to  a  corporation  created  in  two  states  see  Williamson  v.  Krohn, 
66  Fed.  662. 


SUBPOENAS.  835 

As  to  service  by  leaving  a  copy  at  the  usual  place  of  abode  see 
Phoenix  Ins.  Co.  v.  Wulf,  1  Fed.  775;  Kibbe  v.  Benson,  17  Wall.  624; 
Hislop  V.  Hoppock,  No.  6988,  Fed.  Cas.,  5  Ben.  447. 

As  to  form  of  and  amending  return  see  Equity  Rule  15-  Phoenix 
Ins.  Co.  V.  Wulf,  1  Fed.  775;  Dwight  v.  Merritt,  4  Fed.  614;  U.  S.  v. 
Rose,  14  Fed.  681;  No.  3508  Fed.  Cas-,  Cushing  v.  Laird;  R.  S.  U.  S., 
Sees.  948  and  954;  Semmes  v.  U.  S.,  91  U.  S.  21,  23  L.  Ed.  193;  Bryan 
V.  Ker,  222  U-  S.  107,  56  L.  Ed.  114;  Richards  v.  Ladd,  No.  11804 
Fed.  Cas. 


No.  505. 

Service  by  Publication. 

For  form  of  affidavit,  motions,  order  of  publication,  etc., 
see  Nos.  —  to  — .  The  form  is  the  same  in  equity  or  bank- 
ruptcy as  at  law. 


No.  506. 

Subpoena  to  Testify  in  District  Court. 

The  United  States  of  America, 
District  of .  ss. 

The  President  of  the  United  States  of  America  to  tne  Marshal 
of  the District  of ,  Greeting : 

We  command  you  to  summon  G.  S.,  of  ,  county  of 

,  district  and  state  aforesaid,  if  he  be  found  in  your  baili- 
wick, to  be  and  appear  before  the  judge  of  the  district  court 

of  the  United  States  for  the district  of ,  aforesaid, 

at ,  on  the day  of ,  at  10  o'clock  a.  m.,  to  give 

evidence  on  behalf  of  the  plaintiff  [or,  defendant]  in  a  suit 
pending  in  said  court,  wherein  A.  B.,  plaintiff,  and  C.  D.,  de- 
fendant. 

Hereof  fail  not ;  and  of  this  writ  make  legal  service  and  due 
return. 

Witness,  the  Hon.  W.  T.   judge  of  said  court,  this day 

of ,  in  the year  of  the  independence  of  the  United 

States  of  America. 

Attest:  B.  R., 

Clerk  of  the  District  Court  of  the  United  States, 
District  of . 


836  SUITS   IN    EQUITY. 

No.  507. 

Subpoena  Duces  Tecum  to  Testify  in  Court. 

The  United  States  of  America, 

District  of , 

Division,  ss. 


The  President  of  the  United  States  of  America  to  G.  B.  and 
S.  R.,  Greeting: 

We  command  and  strictly  enjoin  you,  and  each  of  you,  that 
laying  aside  all  manner  of  business  and  excuses  whatsoever, 
you  and  each  of  you  be  and  appear  in  your  proper  person  be- 
fore the  judge  of  the  district  court  of  the  United  States  for 

the district  of ,  at ,  on  the  day  of 

next,  at  10  o'clock  a.  m,,  and  also  that  you  bring  with  you 
and  produce  at  the  time  and  place  aforesaid  [here  state  what 
books  or  papers  the  witness  is  required  to  bring  with  him], 
then  and  there  to  testify,  what  you  and  each  of  you  may  know, 
in  a  certain  suit  pending  in  said  court,  wherein  A.  B.  is  plain- 
tiflf  and  C.  D.  is  defendant ;  and  this  you  do  under  the  penalty 
of  the  law. 

[Add  teste  according  to  the  court  issuing  the  writ.] 


No.  508. 

Subpoena  Duces  Tecum  to  Testify  before  a  Master  or 
Examiner. 

The  United  States  of  America, 

District  of , 

Division,  ss. 


The  President  of  the  United  States  of  America  to  G.  B.,  S.  R. 

and  L.  M.,  Greeting: 
We  command  and  strictly  enjoin  you,  and  each  of  you,  that 
laying  aside  all  manner  of  business  and  excuses  whatsoever, 
you  and  each  of  you  be  and  appear  in  your  proper  person  be- 
fore E.  M.,  master  in  chancery  [or,  an  examiner  appointed  by 

Division. 


SUBPOENAS.  837 

the  district  court  of  the  United  States  for  the district  of 

,  or,  as  may  be]  at  [here  give  place  of  examination,  as 

his  office,  No.  12  Main  street,  in  She  city  of ],  on  the 


day  of next,  at  10  o'clock  a.  m.,  and  also  that  you  bring 

with  you  and  produce  at  the  time  and  place  aforesaid  [here 
state  what  books  or  papers  the  zvitness  is  required  to  bring 
with  him],  then  and  there  to  testify,  what  you  and  each  of 
you  may  know,  in  a  certain  action  pending  in  the  district 

court  of  the  United   States   for  the  district  of  , 

wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant;  and  this 
you  do  under  the  penalty  of  the  law. 

[Add  teste  according  to  the  court  issuing  the  writ.} 


838  SUITS    IN    EQUITY. 

(l)DEMURRERS. 
No.  509. 

(1)  Demurrers  are  abolished  by  Equity  Rule  29. 


PLEAS.(l) 
No.  510. 

(1)   Pleas  are  abolished  by  Equity  Rule  29. 


ANSWERS. 

No.  511. 

The  Commencement. 

[Caption.] 

The  answer  of  C.  D,,  the  defendant  [or,  one  of  the  defend- 
ants], [or,  the  joint  and  several  answers  of  C.  D.  and  P.  D., 
the  defendants  (or,  two  of  the  defendants)  ],  to  the  bill  of  com- 
plaint of  A.  B.  and  S.  B.,  plaintiffs. 


No.  512. 

Same,  where  there  is  Only  One  Defendant  to  an 
Original  Bill. 
[Caption.] 

The  answer  of  C.  D.,  defendant,  to  the  bill  of  complaint  of 
A.  B.,  plaintiff. 


No.  513. 

Same,  by  an  Infant. 

[Caption.] 

The  answer  of  C.  D.,  an  infant  under  the  age  of  twenty- 
one  years,  by  L.  M.,  his  guardian,  defendant  [or,  one  of  the 
defendants],  to  the  bill  of  complaint  of  A.  B.,  plaintiff. 


DEMURRERS PLEAS ANSWERS.  839 

No.  514. 

Same,  by  Husband  and  Wife. 

[Caption.] 

The  joint  answer  of  C.  D.  and  E..  his  wife,  defendants,  to 
the  bill  of  complaint  of  A.  B.,  the  plaintiff. 


No.  515. 

Another  Form  by  Husband  and  Wife. 
[Caption.] 

The  joint  answer  of  C.  D.  and  E.,  his  wife,  the  [or,  two  of 
the]  above-named  defendants,  to  the  bill,  etc.,  [or,  if  they 
were  married  since  she  was  made  a  defendant,  say.]  The 
joint  answer  of  C.  D.  and  E.,  his  wife,  lately  and  in  the  bill 
called  C.  S.,  spinster  [or,  widow],  to  the  bill,  etc. 

In  answer  to  the  said  bill,  we,  C.  D.  and  E.,  his  wife,  say 
as  follows : 


No.  516. 

Same,  where  the  Bill  Misstates  the  Names  of  Defendants. 

[Caption.] 

The  answer  of  E.  D.,  one  of  the  above-named  defendants, 
and  the  wife  of  [the  defendant]  C.  D.,  to  the  bill,  etc. 

In  answer  to  the  said  bill,  I,  E.  D.,  answering-  separately 
from  my  husband,  in  pursuance  of  an  order  of  this  honor- 
able court,  dated  the day  of ,  1894,  authorizing  me 

so  to  do,  say,as  follows: 

No.  517. 

Same,  by  a  Lunatic  or  Idiot,  etc. 

[Caption.] 

The  joint  answer  of  C.  D..  a  lunatic  [or,  idiot,  or,  imbecile 
person],  by  T.  P.,  his  guardian  ad  litem,  and  T.  P.,  committee 
of  the  said  C.  D.,  defendants,  to  the  bill  of  complaint  of  A. 
B.,  the  plaintiff. 


840  SUITS   IN    EQUITY. 

No.  518. 

Same,  by  Wife  Separately  under  an  Order. 

[Caption.] 

The  joint  and  several  answers  of  C.  D.,  in  the  bill  called 
R.  D.,  and  of  C.  E.,  in  the  bill  called  D.  E,,  defendants,  to 
the  bill  of  complaint  of  A.  B.,  plaintiff. 


No.  519. 

Verification  of  Answer.  (1) 


State  of 


County  of ,  ss. 

C.  D.  makes  solemn  oath  and  says:  I  am  the  above- 
named  defendant.  So  much  of  the  foregoing  answer  as  con- 
cerns my  own  acts  and  deeds  is  true  to  the  best  of  my  own 
knowledge ;  and  so  much  thereof  as  concerns  the  acts  or  deeds 
of  any  other  person  or  persons  I  believe  to  be  true. 

C.  D, 

Sworn  to  before  me  this day  of . 

[Seal]  J.  N., 

Notary  Public, County. 

(1)  Present  Equity  Rules  contain  no  requirement  as  to  verification; 
Rule  36  states  the  officers  before  whom  a  verification  may  be  made 
where  the  rules  or  a  statute  require.  It  should  also  be  noted  that 
the  rules  do  not  now  make  a  requirement  or  any  provision  for  waiver 
in  the  bill  of  oath  to  the  answer.  The  omission  in  the  new  rules  of 
these  matters  which  were  specifically  provided  for  by  the  old  ones 
should  be  construed  to  mean  that  they  are  not  longer  required.  Pitts- 
burg Water,  etc.,  Co.  v.  Beler  Water,  etc.,  Co.,  222  Fed.  950,  952. 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  841 

COMMON  FORMS  USED  IN  FRAMING  ANSWERS.  (1) 

No.  520. 

Accounts — Reference  to  Book  Containing  them. 

The  dealings  and  transactions  in  respect  of  the  said  trade 
are  entered  in  a  large  book,  or  ledger,  kept  on  the  premises 

at ,  and  the  items  in  respect  thereof  are  contained  in  one 

hundred  and  sixty-four  pages,  with  double  columns,  of  the 
said  book ;  and  to  set  out  such  items  in  detail  would  occasion 
very  great  expense ;  but  we  are  willing,  if  the  court  shall 
think  proper  so  to  direct,  that  the  plaintiff  or  his  solicitor 
should  inspect  the  said  book,  and  take  extracts  therefrom,  at 
all  reasonable  times  of  the  day. 

(1)  See  Equity  Rule  30. 


No.  521. 

Accounts  Refused,  as  Being  Useless  Before  Decree. 

And  we  say  and  submit  that  it  would  only  occasion  great 
and  useless  expense  were  we  in  this  our  answer  to  set  forth 
any  further  or  fuller  account  of  the  rents  and  profits  afore- 
said; and  that  the  same  ought  to  be  taken,  if  at  all,  by  and 
under  the  directions  and  decree  of  this  honorable  court. 


No.  522. 

Admission  for  Purposes  of  the  Suit.(l) 

We  have  no  personal  knowledge  of  the  fact,  but,  for  the 
purposes  of  the  suit,  we  admit  that,  etc. 

Or, 

And  this  defendant  further  answering,  says  he  has  been 
informed  and  believes  it  to  be  true  that,  etc.  Or,  this  de- 
fendant admits  that,  etc. 

(1)  The  averments  of  a  bill  in  equity  may  be  considered  as  estab- 
lished whenever  the  statements  in  the  answer  can,  by  fair  interpreta- 
tion, be  construed  into  an  admission  of  or  acquiescence  in  them. 
Surget  V.  Byers,  Hempst.  715. 


842  SUITS   IN    EQUITY. 

Plaintiflf  is  entitled  to  a  full  answer  as  to  every  material  allegation 
of  his  bill.  Price  v.  Tyson,  22  Am.  Dec.  279.  If  the  answer  is  silent 
as  to  the  fact  charged  to  be,  or  which  may  fairly  be  presumed  to  be, 
within  the  knowledge  of  defendant,  such  fact  will  be  deemed  to  be 
admitted.  Moore  v.  Lockett,  4  Am.  Dec.  683;  Equity  Rule  30  pro- 
vides that  averments  other  than  of  value  or  amount  of  damage  shall  be 
deemed  confessed  if  not  denied,  with  some  exceptions  noted. 

No  admissions  in  an  answer  to  a  bill  in  chancery  can,  under  any 
circumstances,  lay  a  foundation  for  relief  under  any  specific  head  of 
equity  unless  the  ground  be  substantially  set  forth  in  the  bill.  Jack- 
son V.  Ashton,  11  Peters  229. 

If  the  answer  of  the  defendant  admits  a  fact,  but  insists  on  a  matter 
by  way  of  avoidance,  the  complainant  need  not  prove  the  fact  admitted, 
but  the  defendant  must  prove  the  matter  in  avoidance.  Clark  v.  White, 
12  Peters,  178;  affirming,  5  Cranch  C.  C.  102. 

A  denial  in  an  answer  in  equity  that  defendant  "delivered"  a» 
alleged  deed  goes  for  nothing  if  the  answer  admits  facts  and  circum- 
stances which  do  in  law  constitute  delivery.  Adams  v.  Adams,  21 
Wall.  185. 

An  evasive  answer  with  admitted  facts  may  entitle  complainant  to 
the  relief  prayed  for,     Allen  v.  Elder,  2  Am.  St.  Rep.  63- 

In  reference  to  the  answer  generally  see  Equity  Rule  30. 


No.  523. 

Claims  Made  by  Defendant.  (1) 

I  claim  to  be  interested  in  the  matters  of  this  suit,  by- 
virtue  of,  etc. 

The  short  particulars  of  the  mortgage  now  vested  in  us, 
and  of  our  title  thereto,  are  as  follows,  etc. 

We  claim  to  be  equitable  mortgagees  of  the  hereditaments 
mentioned  in  the  said  bill,  together  with  other  hereditaments, 
under  a  memorandum  in  the  words  and  figures  following; 
that  is  to  say,  etc. 

We  claim  a  lien  on  the  shares  of,  etc.,  for  so  much  of  the 
said  debt  as  arises  from  the  unpaid  purchase-money  of  the 
same  shares  respectively,  and  the  interest  thereof. 

(1)  After  having  answered  all  the  allegations  of  the  bill,  defendant 
may  go  on  and  state  matters  in  bar  or  avoidance  of  plaintiff's  claim, 
by  way  of  further  answer.  Price  v.  Tyson,  22  Am.  Dec.  279.  But  if 
the  answer  goes  out  of  the  bill  to  state  anything  not  material  to  the 
defendant's  case,  it  will  be  expunged  as  impertinent.  Price  v.  Tyson, 
22  Am.  Dec.  279. 


COMMON    FORMS   USED   IN    FRAMING   ANSWERS.  843 

No.  524. 

Craving  Leave  for  Greater  Certainty. 

We  admit  that,  etc.  [or,  we  believe  that,  etc.],  but,  for 
greater  certainty,  we  crave  leave  to  refer  to  the  said,  etc., 
when  produced. 


No.  525. 

Craving  Leave  to  Refer  to  Codefendant's  Answer. 

I  know  little  or  nothing  respecting  the  deeds,  dealings, 
and  transactions  stated  in  the  said  amended  bill;  but  I  have 
seen  a  copy  of  the  answer  proposed  to  be  forthwith  put  into 
the  amended  bill  by  the  defendants,  J.  L.  and  G.  W.  F.,  and 
I  have  no  doubt  but  that  the  statements  contained  in  such 
answer  are  correct.  However,  for  my  greater  certainty,  as 
to  the  contents  of  deeds  and  other  written  documents,  I  crave 
leave  to  refer  to  such  deeds  or  documents.  Under  the  cir- 
cumstances hereinbefore  stated,  and  to  avoid  expense  and 
prolixity,  I  abstain  from  answering,  categorically,  the  inter- 
rogatories filed  for  the  examination  of  the  last-named  defend- 
ants and  myself  in  answer  to  the  amended  bill;  but  if  the 
plaintiffs  so  desire  I  am  ready  and  willing  to  put  in  a  full 
answer  to  the  said  amended  bill. 


No.  526. 

Information  and  Belief. 

I  have  been  informed  and  believe  that,  etc. 

I  believe  that,  etc. 

We  have  no  reason  to  doubt,  and  therefore  we  believe  that, 
etc. 

We  believe  that  the  statements  contained  in  the  paragraphs 
numbered  respectively  from  1  to  8,  both  inclusive,  of  the  plain- 
tiff's bill  of  complaint  are  true,  except  in  the  particulars  or 
respect  hereinafter  mentioned;  that  is  to  say,  etc. 


844  SUITS    IN    EQUITY. 

I,  this  defendant,  C.  D.,  say,  and  we,  these  other  defend- 
ants, believe  it  to  be  true,  that,  etc. 

We  have  no  personal  knowledge  of  the  matters  inquired 

after  by  the interrogatory  filed  in  this  cause ;  but  we  have 

no  reason  to  doubt,  and  therefore  we  believe,  that,  etc. 


No.  527. 

Ignorance.  (1) 

I  [or,  we]  do  not  know,  and  can  not  set  forth  as  to  my  [or, 
as  to  either  of  our]  belief  or  otherwise,  whether  or  not  it  is 
alleged  or  is  the  fact  that,  etc. 

(1)  An  answer  stating  that  the  respondent  has  no  knowledge  that 
the  facts  are  as  stated  in  the  bill  of  complaint,  without  any  answer  as 
to  his  belief  concerning  it,  is  deemed  sufficient  to  prevent  the  bill  from 
being  taken  as  confessed,  as  it  may  be  if  no  answer  is  filed.  Brown  v. 
Pierce,  7  Wall.  205.  See  Bradford  v.  Geiss,  4  Wash.  513.  Under 
Equity  Rule  30  a  statement  in  the  answer  that  defendant  is  without 
knowledge  operates  as  a  denial. 


No.  528. 

Qualified  Denial. 

Save  as  herein  appears,  it  is  not  the  fact,  etc. 
Save  as  herein  appears  [or,  save  as  by  the  said  schedule 
appears],  I  do  not  know,  etc. 


No.  529. 

Reference  to  Schedule. 

I  have  in  the  schedule  hereto  annexed,  and  which  I 

pray  may  be  taken  as  part  of  this  my  answer,  set  forth,  to 
the  best  of  my  knowledge,  information,  and  belief,  a  descrip- 
tion of,  etc. 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS,  845 

No.  530. 

Release,  Craving  same  Benefit  as  if  Pleaded. 

We  submit,  and  humbly  insist,  that  the  said  release  so  exe- 
cuted as  aforesaid,  and  the  payment  of  the  said  sum  of  $ , 

and  the  receipt  given  for  the  same,  is  a  full  discharge ;  and  we 
claim  the  same  benefit  as  if  we  had  pleaded  the  same  release. 
■Nevertheless,  we  are  willing  and  hereby  submit  to  account 
as  this  honorable  court  may  think  fit. 


No.  531. 

Settled  Accounts — Claim  of. 

The  account  so  stated  and  settled  was  in  fact  stated  and 
settled  by  the  said  A.  B.  and  myself,  as  it  purports  to  be,  on 
the  day  of  the  date  thereof;  and  I  claim  the  benefit  thereof 
as  a  settled  account. 


No.  532. 

Submission  by  Trustees  to  Act. 

We  submit  in  all  things  to  act  as  this  honorable  court  shall 
direct,  and  we  claim  to  have  our  costs,  charges,  and  expenses, 
properly  incurred,  paid  out  of  the  estate  of  the  said  testator. 


No.  533. 

Traverse. 

The  said  J.  S.  died  on  the day  of ,  and  not  on  the 

—  day  of ,  as  in  the  second  paragraph  of  the  said  bill 


erroneously  stated ;  but  save  as  aforesaid,  we  do  not  know,  and 
are  unable,  as  to  our  belief  or  otherwise,  to  set  forth  whether 
or  not  the  statements  or  some  or  one  or  which  of  the  state- 
ments contained  in  the  paragraphs  numbered  respectively  1 
to  8,  both  inclusive,  of  the  plaintiff's  bill  of  complaint,  are 'or 
is  true,  or  which  of  them  are  or  is  or  in  what  respect  untrue, 
or  how  otherwise. 


846  SUITS    IN    EQUITY. 

No.  534. 

Trustee — Desire  to  be  Discharged. 

I  have  never  in  any  manner  intermeddled  with  the  said 
trust  estate,  nor  received  any  of  the  rents  or  profits  thereof; 
and  I  am  very  desirous  to  be  discharged  from  the  trusts  in 
the  bill  mentioned,  and  I  am  ready  and  willing  to  convey  and 
release  the  trust  premises  to  such  persons,  or  to  do  such 
other  acts,  as  this  honorable  court  shall  direct  for  this  purpose, 
upon  being  indemnified  in  so  doing,  and  having  my  costs  and 
expenses. 


No.  535. 

Vexatious  Suit;  Settled  Accounts. (1) 

We  submit  to  the  judgment  of  this  honorable  court,  and 
humbly  insist,  that  this  suit  is  altogether  unnecessary  and 
vexatious;  and  that  even  if  the  plaintifif  had  been  entitled  to 
such  relief  as  is  prayed  by  the  said  bill,  the  said  relief  might 
have  been  obtained  by  proceedings  at  law;  but  we  say  that  a 
large  sum  of  money  has  been  for  a  long  time,  and  now  is, 
justly  due  and  owing  to  us  from  the  plaintiff;  and  that  during 
the  whole  of  the  transactions  in  the  said  bill  mentioned  we 
were  in  advance  with  creditors  of  the  plaintiff;  and  that  the 
plaintiff  has  repeatedly  and  partly  in  the  letters  hereinbefore 
set  forth  acknowledged  the  accuracy  of  the  accounts  rendered 
by  us  to  him,  and  has  treated  the  same  as  being,  as  in  fact 
they  were,  settled  accounts. 

(1)  Under  Equity  Rule  29  demurrers  and  pleas  are  abolished  and 
provision  is  made  for  making  such  attacks  on  the  bill  or  such  defenses 
by  motion  or  allegation  in  the  answer. 


No.  536. 

Want  of  Interest  in  Plaintiff. 

I  am  advised,  and  humbly  submit,  that  the  plaintiff  has  not 
any  interest  in  the  estate  of  the  said  testator,  or  in  the  mat- 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  847 

ters  in  question  in  this  suit,  nor  any  such  estate  or  interest 
in  the  said  testator's  estate,  or  the  matters  aforesaid,  so  as  to 
entitle  the  plaintiff  to  sustain  this  suit. 


No.  537. 

Claim  of  Benefit  of  same  Defense  to  Amended,  as  to 
Original  Bill 

We  submit  that  the  plaintiff  has  not  by  his  said  amended 
bill  entitled  himself  to  any  equitable  relief  as  against  us; 
and  we  accordingly  claim  the  benefit  of  the  same  objections 
to  the  said  amended  bill  which  are  made  by  our  said  answer 
to  the  said  original  bill. 


No.  538. 

Answer  of  an   Executrix   Submitting  to  Act  under  the 
Indemnity  of  the   Court. 

[Caption,  commencement,  and  first  paragraph.] 

This  defendant  says  that  she  admits  that  S.  W.,  the  testator 
in  the  said  bill  named,  was  at  the  time  of  his  death  possessed 
of  a  considerable  personal  estate,  and  particularly  of  the  sev- 
eral sums  in  the  public  stocks  or  funds  in  the  said  bill  of 
complaint  mentioned;  and  that  the  said  testator  duly  made 
and  published  his  last  will  and  codicil  thereto,  of  such  re- 
spective dates,  and  to  such  purport  or  effect  as  in  the  said 
bill  in  that  behalf  stated ;  but,  nevertheless,  etc. 

Believes  that  the  said  testator  did,  soon  after  making  said 
will  and  codicil,  depart  this  life  without  altering  or  revoking 
the  said  will,  save  by  the  said  codicil,  or  without  altering  or 
revoking  the  said  codicil,  leaving  this  defendant,  his  widow, 
and  such  other  persons  as  in  the  said  bill  in  that  behalf 
named,  him  surviving; 

Admits  that  she  has  duly  proved  the  said  will  and  codicil 
in  the  proper  court,  and  has  taken  upon  itself  the  execu- 
tion thereof,  and  has  by  virtue  thereof  possessed  herself  of 
as  much  of  the  said  testator's  personal  estate  and  effects  as 


848  SUITS  IN   EQUITY. 

she  has  been  able  to  do;  and  this  defendant  denies  that  she 
ever  threatened  to  sell  or  dispose  of  the  said  stocks,  funds, 
and  annuities  in  the  said  will  and  bill  mentioned,  without  any 
regard  to  the  interest  of  the  said  complainants  in  remainder 
therein,  or  has  made  any  transfer  of  the  same ; 

Submits  to  this  honorable  court  what  interest  the  said  com- 
plainants are  entitled  to  in  the  personal  estate  of  the  said  S. 
W.  by  virtue  of  his  said  will ; 

Says  she  has  in  a  schedule,  etc.,  set  forth  a  true  and  par- 
ticular account  of  all  the  personal  estate  to  which  the  said 
testator  was  entitled  at  his  death,  distinguishing-  what  part 
thereof  has  come  to  her  hands,  or  to  the  hands  of  any  other 
person  or  persons  for  her  use,  except  such  sums  as  are  men- 
tioned in  the  schedule  hereinafter  referred  to; 

Says  she  has  in  the  second  schedule,  etc.,  set  forth  an  ac- 
count current  between  her  and  the  estate  of  the  said  S.  W. 
and  this  defendant,  and  has  therein  set  forth  to  the  best  of 
her  knowledge,  etc.,  a  full  and  true  account  of  all  sums  of 
money,  part  of  the  personal  estate  of  the  said  testator  come 
to  her  hands,  or  to  the  hands  of  any  person  or  persons  to  her 
use,  and  of  the  application  thereof ; 

Says  she  is  ready  and  willing  to  account  as  this  honorable 
court  shall  direct,  for  all  such  parts  of  the  personal  estate  of 
the  said  testator  as  have  been  possessed  or  received  by  this 
defendant,  having  all  just  and  reasonable  allowances,  made, 
which  she  is  entitled  to  as  such  executrix;  and  in  all  other 
respects  this  defendant  submits  to  act  as  the  court  shall  direct, 
upon  being  indemnified  and  paid  her  costs  of  this  suit. 


No.  539. 

Answer  of  the   Executors   of  a   Deceased   Acting  Executor 
to  a  Bill  of  Revivor. 

[Caption,  commencement,  and  first  paragraph.] 

These  defendants  say  that  they  believe  it  to  be  true  that  at 
or  about  the  time  in  the  said  bill  stated,  R.  W.,  in  the  said 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  849 

bill  of  revivor  named,  exhibited  his  original  bill  of  complaint 

in  this  honorable  court  against  such  parties  as  defendants 
thereto,  as  in  the  said  bill  mentioned,  thereby  stating  and 
praying  to  the  effect  in  the  said  bill  of  revivor  set  forth,  so 
far  as  the  same  is  therein  set  forth,  and  that  in  consequence 
of  the  death  of  the  said  R.  W.,  the  said  plaintiff,  T.  W.,  at 
or  about  the  time  in  the  said  bill  of  revivor  mentioned,  ex- 
hibited his  supplemental  bill  in  this  honorable  court  against 
such  parties  defendants  thereto  as  therein  mentioned,  stating 
and  praying  to  the  effect  in  the  said  bill  of  revivor  set  forth, 
so  far  as  the  same  is  therein  set  forth.  And  that  the  said 
several  defendants  in  the  said  supplemental  bill  named  after- 
wards appeared  and  put  in  their  answers  thereto,  and  that 
such  proceedings  have  since  been  had  in  the  said  cause  as  in 
the  said  bill  of  revivor  mentioned ;  but  for  their  greater  cer- 
tainty, nevertheless,  these  defendants  crave  leave  to  refer  to 
the  said  original  and  supplemental  bills,  answers  and  other 
proceedings  now  remaining  filed  as  of  record  in  this  honorable 
court;  and  these  defendants  further  severally  answering  say 
they  admit  it  to  be  true  that  before  any  further  proceedings 
were  had  in  the  said  cause,  and  at  or  about  the  time  in  the 
said  bill  of  revivor  in  that  behalf  stated,  G.  R.,  one  of  the 
defendants  to  the  said  original  and  supplemental  bills,  and  one 
of  the  executors  and  trustees  under  the  will  of  the  testator, 
T.  W.,  in  the  said  bill  of  revivor  named,  and  who  has  prin- 
cipally acted  in  the  trusts  thereof,  departed  this  life,  having 
first  duly  made  and  published  his  last  will  and  testament  in 
writing,  of  such  date  as  in  the  said  bill  of  revivor  mentioned, 
and  thereof  appointed  these  defendants  executors;  and  these 
defendants  admit  that  since  his,  death  they  have  duly  proved 
his  said  will  in  the  proper  court,  and  undertaken  the  executor- 
ship thereof,  and  are  thereby  become  his  legal  personal  repre- 
sentatives, and  that  they  possessed  the  said  G.  R.'s  personal 
estate  and  effects  so  far  as  they  have  been  conveniently  able, 
and  these  defendants  believe  (although  they  do  not  admit  the 
same)  that  such  personal  estate  and  effects  are  sufficient  to 


850  SUITS   IN    EQUITY. 

answer  whatever  might  be  due  from  the  said  G.  R.  at  the 
time  of  his  death  to  the  estate  of  the  said  testator,  T.  W.,  if 
anything  were  so  due;  but  these  defendants  not  knowing  the 
amount  thereof  are  advised  that  they  can  not  with  safety  or 
propriety  admit  assets  of  their  said  testator  to  be  in  their 
hands  sufficient  to  answer  the  same,  and  these  defendants  say 
they  are  ready  to  account  for  the  said  G.  R.'s  personal  estate 
possessed  by  them,  or  for  their  use,  in  such  manner  as  the 
court  shall  be  pleased  to  direct,  if  the  same  should  become 
necessary;  and  these  defendants  further  severally  answering 
say  they  submit  that  the  said  suit  and  proceedings  which  be- 
came abated  on  the  death  of  the  said  G.  R.  may  stand  and  be 
revived  against  them  as  such  executors  as  aforesaid,  and  be 
restored  to  the  same  plight  and  condition  in  which  they  were 
at  the  time  of  the  death  of  the  said  G.  R. 


No.  540. 

Answer  of  a  Widow  Electing  to  take  the  Bequests  Made 
to  Her  by  a  Will,  and  to  Release  all  Interest  in  the  Devised 
Estates. 

[Caption,  commencement,  and  first  paragraph.] 

This  defendant  says  that  she  believes  it  to  be  true  that  C. 
B.,  deceased,  the  testator  in  the  said  bill  of  complaint  named, 
being  p>ossessed  of  a  large  personal  estate,  did,  at  or  about  the 
time  in  the  said  bill  of  complaint  mentioned,  duly  make  and 
publish  his  last  will  and  testament  in  writing,  of  such  purport 
and  effect,  and  containing  such  bequest  to  this  defendant  as 
in  the  said  bill  of  complaint  in  that  behalf  set  forth,  and  that 
the  said  testator  appointed  such  persons  as  in  the  said  bill  of 
complaint  named  executors  and  executrix  of  his  said  will. 

And  this  defendant  further  answering  says  that  she  believes 
it  to  be  true  that  the  said  testator  afterwards,  and  at  or  about 
the  time  in  the  said  bill  of  complaint  mentioned,  duly  made 
and  published  a  codicil  to  his  said  will  in  such  words  and  to 
such  purport  and  effect  as  in  the  said  bill  of  complaint  also  set 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  851 

forth;  but  for  her  greater  certainty,  nevertheless,  as  to  the 
said  will  and  codicil,  and  the  respective  dates,  purports  and 
contents,  thereof,  this  defendant  craves  leave  to  refer  thereto 
when  produced. 

And  this  defendant  further  answering  says  that  she  admits 
that  the  said  testator  departed  this  life  at  or  about  the  time  in 
the  said  bill  of  complaint  in  that  behalf  mentioned  without 
having  in  any  manner  altered  or  revoked  his  said  will,  save 
by  the  said  codicil,  and  without  having  altered  or  revoked  his 
said  codicil ;  and  that  the  said  plaintiffs  have  since  duly  proved 
the  said  will  and  codicil  in  the  proper  court,  and  taken  upon 
themselves  the  executorship  thereof. 

And  this  defendant  further  says  that  she  claims  to  be  en- 
titled to  the  benefits  intended  her  by  the  said  testator's  will, 
and  is  ready,  upon  the  same  being  secured  to  her  according 
to  the  directions  in  the  said  will  contained,  to  release  to  J.  P., 
in  the  said  will  named,  all  her  right  and  interest  in  and  to 
the  premises  in  the  said  will  mentioned,  and  for  that  purpose 
to  execute  all  necessary  instruments  or  deeds. 


No.  541. 

Answer  to  a  Bill  Charging  Infringement  of  a  Patent. 

See  under  title  "Patents"  for  form  of  answers  setting  up 
the  various  defenses  to  such  bill. 


No.  542. 

Answer  to  Bill  to  Enjoin  Transfer  of  Patents. 

[Caption.] 

The  defendant,  B.  E.,  answering  plaintiff's  bill  filed  herein, 
admits  that  plaintiff  and  defendants  are  citizens,  as  alleged; 
that  plaintiff  was  a  member  of  the  t>artnership  of  J.  W.  & 
Son,  and  is  now  owner,  by  assignment,  of  all  claims  belong- 
ing to  said  plaintiff  on  March   1,  ;  that  this  defendant 

was  in  the  employ  of  said  partnership  as  a  traveling  salesman 


852  SUITS   IN   EQUITY 

prior  to ,  excepting  a  part  of  the  months  of  June,  July 

and  August  of  ,  for  which  time  the  said  defendant  re- 
ceived no  pay  for  services  rendered  the  plaintiff,  excepting  his 
actual  expense,  which  was  not  according  to  the  contract  en- 
tered into  when  the  defendant  was  employed  by  said  partner- 
ship, and  for  the  services  rendered  the  plaintifif  by  this  de- 
fendant during  said  enforced  vacation,  the  plaintiff  agreed  on 

or  about  ,  verbally,   that  this  defendant  should   receive 

full  pay  from  to  ,  and  should  have  such  time  to 

look  after  his,  this  defendants's  personal  business  as  the  said 
business  required,  but  was  to  hold  himself  in  readiness  to 
attend  to  the  wants  of  any  prospective  customer  of  the  plain- 
tiff, which  this  defendant  did  at  all  times;  that  on  the  

day  of ,  at  his  own  expense  and  while  attending  to  his 

own  personal  business,  this  defendant  did  obtain  said  option 
and  some  time  thereafter  did  inform  plaintiff  that  he  had  ob- 
tained said  option;  that  this  defendant  did  not  accept  the 
terms  of  said  option  and  purchase  said  patent  before  his  em- 
ployment with  the  said  partnership  terminated,  and  as  his 
own  personal  business  and  at  his  own  personal  expense  this 
defendant  did  sell  a  shop-right  under  said  patent  to  C.  W. 
&  Co.,  of  — — ,  for  dollars  and  has  retained  the  pro- 
ceeds thereof,  that  thereafter  this  defendant  formally  accepted 
the  terms  of  said  option  and  obtained  said  patent  to  be  as- 
signed to  himself,  paying  therefor  with  his  own  money  and 
caused  said  assignment  to  be  recorded  in  the  patent  office; 
that  this  defendant  did  procure  the  assignment  of  a  shop-right 
to  manufacture  under  said  patent,  leaving  blank  the  name  of 
the  grantee  and  the  place  where  said  license  was  to  be  exer- 
cised ;  that  he  had  issued  two  other  assignments  of  shop-rights, 
which  he  controls  only  through  the  friendship  of  parties  to 
whom  they  were  issued;  that  he  had  issued  to  the  defendant, 
J.  E.,  a  shop-right  of  the  kind  alleged  in  the  bill,  and  that 
this  defendant  has  refused  and  still  refuses  to  assign  said 
patent  to  the  plaintiff.  The  other  allegations  of  plaintiff's 
said  bill,  together  with  all  qualifications  of  the  above  admis- 
sions as  set  forth  in  said  bill,  this  defendant  denies. 


COMMON    FORMS    USED   IN    FRAMING   ANSWERS.  853 

And  further  answering  plaintiff's  said  bill,  this  defendant 
says  that  on  or  about  the day  of ,  the  said  partner- 
ship of  J.  W.  &  Son,  having"  represented  to  this  defendant 
that  they  were  unable  to  pay  him  the  salary  which  by  the 
terms  of  the  contract  under  which  he  was  employed  by  them 
they  should  pay,  and  this  defendant,  being  unwilling  to  con- 
tinue in  their  service  at  a  less  salary,  it  was  agreed  between 
the  said  partnership  and  this  defendant  that  his  employment 
should  terminate  on  the  first  day  of  January,  1897,  and  about 
the  said  date  one  W.  W.,  being  then  in  the  employ  of  said 
partnership  as  foreman,  and  because  of  a  threatened  reduc- 
tion of  his  salary,  likewise  having  determined  to  quit  the  em- 
ployment of  said  partnership,  said  W.  W,  and  this  defendant 
entered  into  an  agreement,  looking  to  the  organization  of  a 
company  for  the  manufacture  of  machinery  in  which  they  de- 
sired to  use  the  invention  covered  by  said  patent;  that  the 
said  W,  W.  requested  this  defendant  to  visit  the  said  inventor 
and  patentee  and  to  procure  from  him  a  shop-right  under  the 
said  patent,  or  an  assignment  of  the  said  patent,  for  the  pur- 
pose of  using  the  same  in  the  manufacture  of  said  machinery; 

that  on  the day  of ,  pursuant  to  the  said  agreement 

and  request  of  the  said  W.  W.,  and  in  preparation  for  begin- 
ning the  manufacture  of  said  machinery,  this  defendant  at  his 
own  expense  went  to  see  said  inventor,  and  likewise  at  his 
own  expense  procured  said  option  to  be  issued  to  himself; 
that  up  to  said  time  neither  plaintiff  nor  any  other  member  of 
said  partnership  had  directed,  requested  or  suggested  that 
this  defendant  should  procure  an  option  for  the  purchase  of 
said  patent,  or  procure  any  interest  in  the  same  for  said  part- 
nership; that  thereafter  and  about  the day  of ,  this 

defendant   received  a   letter   from   plaintiff,   bearing   date   of 

,  in  which  plaintiff  asked  this  defendant  whether  he  had 

seen  the  s?.:d  inventor  and  patentee,  and  stated  that  he  had 
written  to  this  defendant  about  the  said  matter  nearly  two 
months  previously;  and  this  defendant  says  that  said  letter 
contained  the  first  information  to  him  from  plaintiff  or  any 
other  member  of  said  partnership  that  said  partnership  desired 


854  SUITS   IN    EQUITY. 

him  to  procure  any  interest  in  the  said  patent,  for  said  part- 
nership, and  this  defendant  believes  and  alleges  the  fact  to 
be,  that  plaintiff  had  at  that  time  learnend  that  this  defendant 
had  already  obtained  said  option,  and  thereupon  wrote  said 
letter  to  this  defendant,  falsely  pretending  that  he  had  there- 
tofore, by  letter,  requested  this  defendant  to  obtain  said  option 
for  said  partnership. 

This  defendant  further  says  that  he  obtained  the  said  pat- 
ent and  the  said  option  for  the  purchase  of  the  same,  at  his 
own  expense  and  in  good  faith,  with  the  view  of  organizing 
a  company  for  the  manufacture  of  machinery,  in  which  he 
and  the  said  W.  W.  desired  to  use  the  said  patented  invention, 
after  the  termination  of  his  employment,  and  that  of  said 
W.  W.,  by  the  said  partnership. 

Wherefore  this  defendant  asks  that  the  plaintiff's  bill  may 
be  dismissed  at  his  cost,  and  that  this  defendant's  title  to  and 
ownership  of  the  said  patent  be  quieted  against  all  claims  by 
the  plaintiff.  B.  E. 

[Verification.] 


No.  543. 

Answer  (1)  in  Case  of  Copyright  Infringement. 

[Caption.'] 

Now  comes  the  defendant,  and  for  answer  to  the  bill  of 
complaint  of  the  plaintiff  herein  answering  shows : 

1.  Defendant  neither  admits  nor  denies  the  corporate  exist- 
ence of  the  plaintiff,  and  calls  for  proof  of  incorporation,  as 
plaintiff  may  be  advised. 

2.  Defendant  admits  that  it  is  a  corporation  as  alleged  in 
the  bill  of  complaint,  and  doing  business  therein  as  alleged, 
but  denies  that  at  its  said  place  of  business,  or  elsewhere,  it 
has  committed  any  of  the  acts  pleaded  in  the  bill  of  complaint. 

3.  Defendant  denies  that  the  plaintiff  is  the  author  of  the 
alleged  copyrighted  work  complained  of,  and  demands  proof 
thereof. 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  855 

4.  Defendant  neither  admits  nor  denies  the  allegation  in 
the  fourth  paragraph  of  the  bill  of  complaint  contained,  and 
leaves  plaintiff  to  its  proof. 

5.  That  defendant  has  no  knowledge  sufficient  to  form  a 
belief  whether  on  the  11th  day  of  September,  1914,  or  upon 
any  other  day,  plaintiff  published  within  the  limits  of  the 
United  States,  or  elsewhere,  any  book  known  as  "Hendricks' 
Commercial  Register  of  the  United  States  for  Buyers  and 
Sellers — Twenty-third  Annual  Edition,"  or  whether  the  said 
alleged  book  was,  on  the  14th  day  of  September,  1914,  en- 
tered for  copyright  in  the  office  of  the  register  of  copyrights 
at  Washington,  D.  C,  or  whether  two  complete  copies  of  the 
book  were  at  that  date  or  any  other  date  filed  therein,  or 
whether  the  said  alleged  book  was  printed  from  plates  made 
in  the  United  States,  from  type  set  within  the  limits  of  the 
United  States,  or  was  bound  within  the  United  States,  or 
whether  plaintiff  did  all  or  any  other  acts  required  by  law 
for  the  completion  of  copyright  entry,  or  whether  the  said 
alleged  book  was  published  with  copyright  notice  thereon,  as 
required  by  law,  and  alleged  in  the  said  bill  of  complaint,  and 
leaves  plaintiff  to  its  proof. 

6.  Defendant  denies  that  by  any  such  copyright  entry  or 
any  certificate  issued  by  the  register  of  copyrights  there  was 
secured  to  the  plaintiff  any  exclusive  right  and  privilege  in 
the  said  book  throughout  the  United  States  and  elsewhere, 
and  denies  that  the  books  published  pursuant  to  said  copy- 
right have  carried  the  copyright  notice  required  by  law. 

7.  Defendant  denies  that  the  said  book  w^as  composed, 
edited,  prepared,  arranged,  compiled  and  published  from  orig- 
inal sources  of  information,  and  alleges  the  fact  to  be  that 
the  said  book  was  composed,  edited,  prepared,  arranged  and 
compiled  by  copying  from  other  sources  of  information,  and 
especially  from  defendant's  several  copyright  editions  of 
"Thomas'  Register  of  American  Manufacturers  and  First 
Hands  in  All  Lines,"  which  will  hereafter  be  referred  to  as 
"Thomas'  Register  of  American  Manufacturers."  Defendant 
avers  that  all  of  its  several  editions  of  "Thomas'  Register  of 


856  SUITS  IN   EQUITY. 

American  Manufacturers"  have  been  duly  copyrighted  by  it 
by  pubh'cation  of  the  said  books  with  notice  of  copyright 
thereon,  and  by  compliance  with  all  other  formalities  required 
to  secure  a  valid  copyright.  Nevertheless,  the  plaintiff  did 
unfairly,  in  violation  of  the  defendant's  several  copyrights 
aforesaid,  in  the  several  editions  of  "Thomas'  Register  of 
American  Manufacturers,"  and  especially  in  the  sixth  edition, 
appropriate,  copy,  print  and  publish  many  of  the  lists  of 
manufacturers  and  others  appearing  in  said  "Thomas'  Regis- 
ter of  American  Manufacturers,"  said  lists  being  original  in 
said  "Thomas'  Register"  and  the  property  of  the  defendant. 
Defendant  further  avers  that  the  plaintiff  has  from  time  to 
time  continuously  used  the  several  editions  of  "Thomas' 
Register,"  and  more  especially  the  sixth  edition,  in  the  com- 
pilation of  the  several  editions  of  "Hendricks'  Register,"  and 
more  specifically  in  the  compilation  of  the  twenty-second, 
twenty-third  and  twenty-fourth  editions  of  "Hendricks'  Regis- 
ter," instead  of  resorting  to  original  sources  for  such  infor- 
mation, all  to  the  great  loss  and  damage  of  said  defendant. 

8.  Defendant  has  no  knowledge  sufficient  to  form  a  belief 
as  to  the  number  of  copies  of  the  alleged  book  printed  and 
sold  by  the  plaintiff,  or  whether  or  not  the  printing  and  pub- 
lishing of  said  book  fulfill  all  the  requirements  of  the  copy- 
right law,  and  requires  strict  proof  thereof;  but  defendant 
denies  that  the  plaintiff  is  the  sole  and  exclusive  owner,  or 
that  the  said  book  is  of  a  value  of  $125,000,  but  defendant  has 
no  knowledge  sufficient  to  form  a  belief  as  to  the  actual  value, 
if  any,  of  the  publications  of  the  plaintiff  as  alleged. 

9.  Defendant  admits  that  it  is  in  the  business  of  publishing 
and  selling  "Thomas'  Register  of  American  Manufacturers, 
Seventh  Edition,"  but  denies  the  jurisdiction  of  this  court  in 
dealing  with  questions  of  unfair  competition  between  the  par- 
ties hereto.  Answering,  however,  defendant  denies  that  its 
said  publication,  "Thomas'  Register  of  American  Manufac- 
turers, Seventh  Edition,"  is  a  violation  or  infringement  upon 
any  of  plaintiff's  rights. 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  857 

10.  Defendant  admits  that  prior  to  the  publication  of 
''Thomas'  Register  of  American  Manufacturers,  Seventh  Edi- 
tion," and  in  the  previous  editions  of  said  "Thomas'  Register 
of  American  Manufacturers,"  there  had  been  published  no 
consohdated  list  of  machinists  and  founders,  and  no  list  of 
architects.  Defendant,  however,  has  for  eighteen  years  itself 
and  through  affiliated  companies  published  lists  of  machinists 
and  founders.  Further  answering,  defendant  alleges  that  it 
has  always  been  the  policy  of  the  defendant  to  continually 
expand  the  said  publication  and  to  add  new  lists  and  new 
names  as  conditions  made  possible  or  desirable,  and  that  pur- 
suant to  said  well-established  policy  extending  over  a  large 
number  of  years  defendant  did  add  in  the  seventh  edition  a 
consolidated  list  of  machinists  and  founders  and  a  list  of 
architects,  as  well  as  many  other  lists,  such  as  lists  of  banks 
and  boards  of  trade.  It  maintains  that  such  lists  are  original 
to  itself,  but  that  the  question  of  damages  to  the  plaintiff  by 
the  addition  of  any  such  consolidated  list  of  machinists  and 
founders  and  list  of  architects  is  a  question  of  unfair  com- 
petition in  trade,  and  as  such  without  the  jurisdiction  of  this 
court. 

11.  Defendant  admits  that  in  the  year  1914  one  S.  E.  Hen- 
dricks and  several  other  employes  of  the  plaintiff,  after  quit- 
ting the  employ  of  the  plaintiff,  did  enter  the  employ  of  the 
defendant  herein ;  but  denies  that  any  unlawful  advantage  of 
the  plaintiff  was  thereby  secured  to  the  defendant.  Defend- 
ant specifically  denies  the  jurisdiction  of  this  court  in  passing 
upon  any  questions  of  unfair  competition  by  reason  of  such 
employment  of  the  former  employes  of  the  plaintiff,  or  by 
reason  of  any  acts  of  alleged  unfair  competition  on  the  part 
of  defendant's  employes. 

12.  Defendant  denies  that  any  list  appearing  in  "Thomas' 
Register  of  American  Manufacturers,  Seventh  Edition,"  is 
copied  from  the  twenty-third  or  any  other  edition  of  "Hen- 
dricks' Commercial  Register  of  the  United  States  for  Buyers 
and  Seflers,"  or  that  any  part  was  copied  therefrom  verbatim 
or  otherwise,  and  alleges  the  fact  to  be  that  every  list  con- 


858  SUITS   IN    EQUITY. 

tained  in  "Thomas'  Register  of  American  Manufacturers, 
Seventh  Edition,"  was  secured  and  compiled  by  the  defendant 
herein  from  other  sources  than  from  plaintiff's  alleged  copy- 
right book,  and  alleges  the  fact  to  be  that  the  said  list  com- 
plained of,  to-wit,  the  consolidated  list  of  machinists  and 
founders,  and  the  list  of  architects  appearing  in  said  seventh 
edition,  were  secured  and  compiled,  corrected  and  verified, 
wholly  from  sources  in  which  the  plaintiff  has  no  right  or 
interest. 

13.  That  defendant  has  no  knowledge  sufficient  to  form  a 
belief  as  to  any  acquiescence  to  the  plaintiff,  but  denies  any 
and  all  wrongful  or  unlawful  acts  on  its  own  behalf  as  against 
the  rights  and  privileges  of  the  plaintiff,  or  privileges  or 
rights  which  would  or  might  have  been  enjoyed  by  the  plain- 
tiff had  defendant's  publication,  "Thomas'  Register  of  Ameri- 
can Manufacturers,  Seventh  Edition,"  not  been  published. 
Defendant  further  admits  that  except  for  defendant's  publica- 
tion, as  aforesaid,  plaintiff  may  have  enjoyed  larger  income 
and  greater  profits  from  the  publication  and  sale  of  its  said 
publication,  but  alleges  the  fact  to  be  that  any  curtailment  of 
income  or  profits  from  the  sale  of  plaintiff's  book  was  due 
wholly  to  the  superiority  of  defendant's  publication,  and  to 
the  personalities  of  the  persons  connected  with  the  publica- 
tion of  defendant's  said  register,  and  on  account  of  the  con- 
fidence of  the  subscribing  and  advertising  public  in  the  said 
publication  and  in  the  said  personalities,  and  is  due  in  no 
measure  to  any  unfair  or  unlawful  appropriation  of  plaintiff's 
rights  by  defendant. 

14.  Further  answering,  defendant  denies  any  copyright  or 
any  interest  in  any  copyright  in  the  plaintiff  as  alleged,  and 
admits  that  it  has  never  received  from  the  plaintiff  any  license 
or  permission  to  copy  any  copyright  book  of  the  plaintiff,  or 
any  book  of  the  plaintiff  not  copyrighted;  but  denies  that  it 
has  infringed  any  copyright  of  the  plaintiff,  or  wrongfully, 
willfully,  fraudulently  or  unlawfully  made  or  caused  to  be 
made,  copied  or  caused  to  be  copied,  printed  or  caused  to  be 
printed,  published  or  caused  to  be  published,  sold  or  caused 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  859 

to  be  sold,  advertised  or  caused  to  be  advertised  any  copy- 
righted or  other  publication  of  the  plaintiff;  or  that  it  is  now 
continuing-  all  or  any  of  said  acts,  or  has  threatened  or  is 
threatening  to  continue  all  or  any  of  said  acts. 

15.  Defendant  denies  that  it  has  or  did  have  at  the  date  of 
the  filing  of  the  said  bill  of  complaint  in  its  possession  a  great 
number  of  the  seventh  edition  of  the  "Thomas'  Register  of 
American  Manufacturers,"  and  alleges  the  fact  to  be  that  it 
had  at  that  time  very  few  copies  of  said  seventh  edition,  and 
that  between  the  said  filing  of  the  said  bill  of  complaint  and 
the  date  of  filing  this  answer  the  said  copies  had  been  seized 
and  taken  from  the  possession  of  the  defendant  by  the  United 
States  marshal  for  the  southern  district  of  New  York,  and 
are  still  held  in  his  possession  and  against  the  interests  of  the 
defendant. 

16.  Defendant  denies  that  any  act  in  the  premises  has  un- 
lawfully been  to  the  irreparable  or  any  other  injury  or  dam- 
age to  the  plaintiff. 

17.  Defendant  admits  that  its  said  "Thomas'  Register  of 
American  Manufacturers,  Seventh  Edition,"  contains  more 
than  thirty-one  hundred  (3,100)  pages,  and  weighs  approxi- 
mately thirteen  and  one-half  (13i/^)  pounds,  as  alleged  in 
said  bill  of  complaint ;  and  alleges  the  fact  to  be  that  the  said 
"Thomas'  Register  of  American  Manufacturers,  Seventh  Edi- 
tion," is  a  publication  of  great  value,  carefully  and  conscien- 
tiously compiled  and  edited,  and  published  at  very  great  ex- 
pense, and  is  recognized  as  an  authoritative  list  of  the  several 
industries  listed  therein. 

18.  Defendant  further  answering  says  that  this  action  was 
brought  by  the  plaintiff  because  the  superior  merit  of  defend- 
ant's publication  had  seriously  impaired  the  circulation  and 
advertising  value  of  plaintiff's  publication ;  and  that  the  super- 
seding of  plaintiff's  publication  by  defendant's  publication 
produced  animosity  on  behalf  of  the  plaintiff,  and  that  the 
said  successful  though  lawful  business  rivalry  is  the  sole  and 
exclusive  reason  for  the  animosity  displayed  on  behalf  of  the 
plaintiff. 


860  SUITS   IN    EQUITY. 

19.  Further  answering,  defendant  says  that  plaintiff  well 
knew  at  and  before  the  beginning  of  this  suit  that  defendant's 
publication  was  not  an  infringement  upon  any  copyright  of 
the  plaintiff,  and  that  the  said  suit  was  begun  by  the  plaintiff 
wholly  and  solely  for  the  purpose  of  embarrassing  defendant 
with  its  subscribers  and  ad'r'>rtisers,  and  for  no  other  purpose, 
and  with  no  nope  or  possi'ble  hope  of  final  success  in  main- 
taining or  establishing  infringement  of  plaintiff's  copyright. 

20.  Defendant  further  answering  says  that  it,  this  defend- 
ant, has  been  seriously  embarrassed  with  its  subscribers  and 
advertisers,  and  that  by  reason  of  the  seizure  of  its  said  sev- 
enth edition,  as  aforesaid,  by  the  United  States  marshal  for 
the  southern  district  of  New  York,  it  has  been  greatly  and 
irreparably  damaged,  both  in  the  sale  of  the  present  and 
future  editions  of  said  publication  and  by  reason  of  the  can- 
cellation of  orders  for  books  and  for  advertising  in  said  pub- 
lication, the  exact  amount  of  said  loss  not  being  known  to 
defendant  at  the  present  time. 

21.  Further  answering,  defendant  says  that  in  the  further- 
ance of  the  animus  on  behalf  of  plaintiff- the  said  plaintiff  did 
promptly,  following  the  seizure  of  the  said  "Thomas  Register, 
Seventh  Edition,"  advertise  and  notify  largely  defendant's 
advertisers  and  subscribers  of  the  fact  of  such  seizure,  and 
the  application  for  preliminary  injunction,  giving  the  said  sub- 
scribers and  advertisers  to  understand  or  reason  to  infer  that 
the  publication  of  defendant  is  and  was  in  fact  an  infringe- 
ment upon  the  rights  and  copyrights  of  the  plaintiff,  and  un- 
lawfully published  and  distributed,  and  that  owners  and  hold- 
ers of  the  published  work  of  the  defendant  herein  would  be 
and  was  subject  to  prosecution  by  the  plaintiff,  or  that  the 
further  purchase  or  possession  of  any  of  the  publications  of 
defendant  would  hereafter  subject  such  owner  or  holder  to 
prosecution  for  infringement  of  copyright  of  the  plaintiff,  and 
by  such  threats  intimidated  the  subscribers  and  advertisers  of 
defendant,  and  caused  the  defendant  thereby  great  and  irrep- 
arable damage. 


COMMON    FORMS    USED    IX    FRAMING    ANSWERS.  861 

22.  That  the  copies  of  the  said  seventh  edition  of  defend- 
ant's publication  seized  by  the  United  States  marshal  for  the 
southern  district  of  New  York  were  largely  composed  of  office 
copies  employed  by  the  defendant  in  the  compilation  and  cor- 
rections for  publication  in  the  next  succeeding  issue  of  the 
said  register,  and  therefore  of  great  value  to  the  defendant, 
and  many  times  the  value  of  the  said  copies  for  sale,  and  that 
the  forcible  removal  from  and  detention  of  the  said  books 
caused  a  partial  cessation  of  compilation  for  the  next  edition 
and  a  delay  in  the  preparation  of  the  copy  therefor,  and  there- 
by worked  great  and  irreparable  injury  to  the  defendant. 

23.  That  by  the  seizure  of  the  said  copies  of  defendant's 
publication,  and  by  the  publication  of  said  seizure  by  the 
plaintiff,  and  the  notification  to  defendant's  advertisers  and 
subscribers,  defendant  has  been  damaged  in  a  very  great 
amount,  which  amount  defendant  can  not  now  determine  or 
even  estimate,  but  alleges  that  the  said  injury  to  the  defendant 
is  more  than  fifty  thousand  dollars  ($50,000). 

24.  That  by  reason  of  the  statements  made  by  plaintiff  to 
defendant's  subscribers  and  advertisers,  and  prospective  sub- 
scribers and  advertisers,  defendant  has  deemed  it  necessary 
to  and  has  secured  and  provided  a  bond  conditioned  to  pro- 
tect defendant's  subscribers  and  advertisers,  the  cost  of  which 
said  bond  adds  to  defendant's  injury  and  damage. 

25.  Defendant  further  answering  says  that  the  plaintiff 
herein  by  abuse  of  process,  to-\vit,  by  securing  an  order  to 
show  cause  why  preliminary  injunction  should  not  issue,  put 
defendant  to  great  expense  in  the  preparation  of  opposing 
papers,  which  said  expense  to  defendant  is  more  than  one 
thousand  dollars  ($1,000),  and  that  well  knowing  that  the 
plaintiff  had  no  cause  for  preliminary  injunction  and  no  legal 
or  equitable  right  to  the  same,  did,  only  a  few  hours  prior  to 
the  hearing  on  said  order,  withdraw  its  said  motion  for  a 
preliminary  injunction,  and  that  notwithstanding  the  great 
expense  and  damage  suffered  by  defendant. 

26.  Upon  information  and  belief  defendant  alleges  that  the 
financial  control  of  the  plaintiff  is  in  the  hands   of  certain 


862  SUITS   IN   EQUITY. 

persons  or  corporations  resident  in  London,  England;  and 
tfiat  the  financial  depreciation  of  plaintiff's  publication  by 
reason  of  the  superiority  of  defendant's  publication  caused 
the  said  persons  resident  in  London,  England,  to  severely 
criticise  the  resident  managing  officers,  and  that  all  of  the 
said  several  acts  of  the  plaintiff  herein  alleged  by  defendant 
against  this  defendant  have  been  for  the  purpose  and  only  for 
the  purpose  of  inducing  the  London  control  to  believe  that 
the  said  depreciation  was  not  due  to  acts  of  the  resident  offi- 
cers or  to  inferiority  of  the  publication,  but  to  unlawful  acts 
on  behalf  of  defendant  herein,  and  to  thereby  enable  the  said 
American  officers  to  remain  in  the  control  and  management 
of  the  said  publication,  which  said  control  and  management, 
as  defendant  is  advised  and  believes,  was  threatened  by  the 
said  London  control. 

Wherefore  defendant  prays  that  said  bill  of  complaint  be 
dismissed,  and  that  it  be  adjudged  that  the  defendant  has  not 
infringed  any  valid  copyrights  possessed  by  the  plaintiff. 

That  an  order  be  entered  herein  requiring  the  United  States 
marshal  for  the  southern  district  of  New  York  to  return  to 
defendant  the  books  seized  by  and  retained  in  the  possession 
of  said  marshal  as  aforesaid. 

That  defendant  have  judgment  for  damages  against  the 
plaintiff  for  depreciation  of  the  said  books  seized  and  retained 
by  the  marshal,  for  its  damages  resulting  from  such  seizure, 
for  its  damages  resulting  from  withholding  the  said  books 
from  the  possession  of  the  defendant,  for  its  damages  sus- 
tained by  the  abuse  of  process  in  securing  order  to  show  cause 
why  preliminary  injunction  should  not  be  issued  and  abandon- 
ing the  same,  for  its  damages  sustained  in  alienating  its  ad- 
vertisers and  subscribers  by  means  of  deceptive  and  mislead- 
ing statements  circulated  broadcast  among  defendant's  adver- 
tisers and  subscribers  by  the  plaintiff  prior  to  the  hearing  of 
this  cause,  and  for  such  other  and  further  damages  and  equit- 
able relief  as  to  the  court  may  seem  just. 

That  the  defendant  have  its  further  judgment  for  its  costs, 
attorney's  fees  and  disbursements  in  this  action. 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  863 

That  the  prayer  for  injunction  be  denied  and  that  such  fur- 
ther reh'ef  be  accorded  to  the  defendant  in  view  of  the  facts 
complained  of  by  the  plaintiff  as  to  the  court  may  seem  just. 

Hugo  Mock, 
E.  T.  Fenwick,  Soh'citor  for  Defendant. 

L.  L,  Morrill, 
Of  Counsel. 

(1)  See  Equity  Rule  29. 

For  treatise  on  Pleas  under  old  equity  rules,  refer  to  1  Street 
Federal  Equity  Practice,  Sees.  825  to  916;  1  Foster  Federal  Practice, 
5th  ed..  Sees.  173  to  177;  1  Whitehouse  Equity  Practice,  Sees.  242 
to  259. 

For  demurrers  under  the  old  equity  rules,  refer  to  1  Street  Federal 
Equity  Practice,  Sees.  917  to  972;  Foster's  Federal  Practice,  5th  ed.. 
Sees.  365  and  366;  1  Whitehouse,  Equity  Practice,  Sees.  213  to  241. 

The  answer,  under  old  Equity  Rule  39  might  embody  any  defenses 
available  by  plea  in  bar,  without  subjecting  defendant  to  discovery 
which  was  the  principal  reason  for  the  plea  in  bar.  1  Street  Federal 
Equity  Practice,  Sec.  1009. 

Equity  Rule  29  abolishes  demurrers  and  pleas,  and  provides  that 
their  ancient  offices  shall  be  performed  by  the  motion  to  dismiss  or 
by  the  proper  averments  in  the  answer.  These  two  pleadings  form  the 
subject  of  many  decisions  and  are  always  treated  at  length  in  books 
dealing  with  equity  practice.  In  applying  the  new  rule  the  courts 
lean  to  the  view  that  all  the  rights  of  a  party  formerly  preserved  'by 
these  pleadings  are  still  maintained  and  only  the  manner  of  assert- 
ing them  is  changed;  hence  the  rules  stating  the  eflfect  of  demurring 
or  making  a  plea  apply  to  the  new  practice.  Therefore  we  do  not 
deal  with  a  group  of  new  rights,  but  with  new  methods  of  asserting 
old  rights. 

The  purpose  of  the  new  rule  is  to  simplify  and  render  more  certain 
the  matter  of  procedure  and  the  comments  in  recent  cases  are 
interesting. 

In  Hyams  v.  Old  D  jminion  Company,  204  Fed.  681,  a  motion  to 
dismiss  on  the  ground  that  an  indispensable  party  was  not  joined 
was  held  proper. 

In  Wilson  v.  Amer.  Ice  Co.,  206  Fed.  736,  a  minority  stockholder 
filed  a  bill  against  the  corporation  and  officers  and  directors  to  force 
the  company  to  declare  a  dividend  upon  his  preferred  stock;  defend- 
ant filed  a  motion  to  dismiss  under  Rule  29,  because  it  was  not  alleged 
that  defendants  were  not  authorized  to  do  the  things  complained  of, 
and  the  bill  did  not  particularly  set  forth  the  efforts  of  complainant  to 
secure  desired  action  from  defendants,  and  causes  of  failure  to  secure 
action,  or  reason  for  not  making  an  eflfort  as  prescribed  by  Equity 
Rule  27. 


864  SUITS   IN   EQUITY. 

Court  allowed  the  motion  after  considering  the  allegations  of  the 
bill  of  complaint  and  the  law  applicable  to  such  cases,  but  gave  leave 
to  complainant  to  amend. 

In  General  Bakelite  Co.  v.  Nikolas,  207  Fed.  Ill,  ruled  that  motion 
under  Equity  Rule  29  is  proper  method  to  raise  sufficiency  of  com- 
plaint under  Rule  25. 

In  re  Jones,  209  Fed.  717,  rule  laid  down  that  a  demurrer  will  nofc 
lie  to  involuntary  petition  in  bankruptcy  since  the  adoption  of  Rule 
29,  which  applies  equally  to  such  a  proceeding  on  the  theory  that 
proceedings  in  bankruptcy  are  equitable  in  their  nature. 

In  Bogert  v.  Sou.  Pac.  Ry.,  211  Fed.  776,  it  is  said  that  a  motion  to 
dismiss  must  be  determined  upon  bill  of  complaint,  and  can  not  rely 
upon  allegations  of  fact  in  answer.  Here  there  was  a  motion  to  dis- 
miss and  judgment  on  merits  of  pleading  because  of  alleged  defects 
of  parties  set  out  in  answer,  which  also  set  out  laches  of  plaintiff. 
A  hearing  would  have  been  necessary  on  the  motion  since  testimony 
in  the  shape  of  a  record  in  another  case  was  relied  upon;  inasmuch  as 
the  answer  was  already  on  file,  a  denial  of  the  motion  could  not  have 
been  followed  by  an  order  to  answer  over;  hence,  the  hearing  was 
postponed  to  the  taking  of  testimony  in  the  main  issue,  the  court 
ruling  that  there  could  be  no  hearing  in  advance. 

In  Alexander  v.  Fidelity  Trust  Co.,  215  Fed.  791,  held  that  the  bar 
of  laches  claimed  to  be  presented  on  the  face  of  the  bill  may  be 
raised  by  motion  to  dismiss  under  Equity  Rule  29. 

In  Boyd,  et  al.,  v.  N.  Y.  &  H.  R.  Ry.  Co.,  220  Fed.  174,  it  is  said 
that  the  defendant  is  required  to  show  all  his  propositions,  whether 
of  law  or  of  fact,  at  once  in  the  answer,  and  the  court  on  a  motion  to 
determine  points  of  law  authorized  by  Equity  Rule  29,  may  consider 
whether,  in  view  of  the  facts  alleged,  any  of  the  legal  theories  pro- 
pounded can  properly  be  considered  before  testimony  taken,  or  by 
merely  taking  such  evidence  as  has  previously  been  often  adduced  in 
support  of  a  plea,  so  that  when  defendant  claims  that  the  complaint 
shows  no  case  for  equitable  relief,  he  may  not  complain  if  the  court 
considers  the  admissions  or  allegations  of  the  answer  which  explain 
or  enlarge  but  do  not  contradict  the  allegations  of  the  bill. 

In  Ralston  Steel  Car  Co.  v.  National  Dump  Car  Co.,  222  Fed.  590, 
a  motion  to  dismiss  the  bill  was  denied  because  the  bill  presented 
certain  intricate  matters  of  considerable  detail  which  the  court  thought 
should  go  to  answer  and  proofs,  applying  the  rules  necessary  to 
determine  the  allowance  of  a  demurrer  under  old  rules  to  this  motion  to 
dismiss. 

In  Goldschmidt  Thermit  Co.  v.  Primos  Chemical  Co.,  225  Fed. 
769,  held  that  Rule  29  does  not  cover  a  case  where  objection  is  made 
to  the  maintenance  of  a  bill  because  of  the  existence  of  a  remedy  at 
law.     This  must  be  asserted  under  Rule  22  or  23. 

In  Crim  v.  Rice,  232  Fed.  570,  held  that  a  motion  may  be  made 
under  Rule  29  to  dismiss  for  failure  to  comply  with  Rule  25. 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  865 

In  Wright  v.  Barnard,  233  Fed.  329,  held  to  be  in  the  discretion  of 
the  court  to  determine  whether  to  refuse  to  decide  a  case  on  a 
motion  to  dismiss  under  Equity  Rule  29,  and  to  require  answer;  the 
province  of  the  court  under  this  new  rule  being  the  same  as  under 
the  old  rule  permitting  a  demurrer  in  such  case. 

In  Swift  V.  Inland  Nav.  Co.,  234  Fed.  375,  held  that  an  objection  to 
misjoinder  of  defendants  can  not  be  taken  as  a  matter  of  right  except 
by  motion,  or  plea,  or  answer;  nor  can  it  be  insisted  upon  at  trial, 
since  it  must  be  taken  in  time  or  is  waived. 

The  court,  however,  may  raise  the  question  sua  sponte  any  time,  on 
consideration  of  the  due  administration  of  justice. 

In  Great  Lakes,  etc.,  Co.  v.  Scranton  Coal  Co.,  239  Fed.  603,  the 
court  says  at  p.  606:  "It  (Rule  29)  aims  at  simplifying  the  pleadings, 
not  at  abolishing  the  requirement  of  a  special  appearance  at  the 
outset,  if  the  personal  privilege  is  intended  to  be  asserted." 

In  Forbes  v.  Wilson,  243  Fed.  264,  a  case  of  a  stockholder's  bill 
under  Equity  Rule  21,  motion  to  dismiss  was  based  on  (a)  failure 
to  allege  conpliance  with  Rule  27;  (b)  insufficiency  of  alleged  facts;  the 
court  held  that  on  such  motion  the  allegations  of  the  bill  would  be 
considered  true,  as  was  the  practice  formerly  upon  demurrer. 

In  Krouse  v.  Brevard  Tannin  Co.,  249  Fed.  538,  a  case  of  stock- 
holder's bill,  the  court  held  that  Equity  Rule  29  contemplates  that 
such  motion  be  made  before  the  answer  is  filed;  and  if  made  after- 
ward, it  must  be  determined  on  the  allegations  of  the  bill  unaided  by 
the  answer;  recognizing,  however,  that  such  motion  might  be  prop- 
erly permitted  by  the  court  at  any  time  before  the  hearing. 

In  General  Inv.  Co.  v.  L.  S.  &  M.  S.  Ry.,  250  Fed.  160,  at  p.  172,  the 
court  says  that  the  motion  under  Equity  Rule  29  is  a  substitute  for 
the  demurrer  under  the  older  practice,  and  hence  the  motion  to  dis- 
miss the  bill  will  fail  if  any  part  of  the  bill  is  good  against  the  motion, 
although  if  limited  to  the  defective  part  it  would  have  been  sustained. 

In  Old  Dominion  Trust  Co.  v.  First  Natl.  Bank  of  Oxford,  252  Fed. 
613,  held  that  the  motion  to  dismiss  applied  only  to  facts  appearing  on 
the  face  of  the  bill  and  attached  exhibits  made  a  part  thereof,  and 
hence  other  facts,  although  supported  by  affidavit,  can  not  be  consid- 
ered in  deciding  the  motion. 

There  are  excellent  discussions  by  the  courts  of  the  scope  of  this 
rule  and  the  changes  effected  thereby,  illuminated  by  references  to 
the  older  practice.  Such  discussions  are  found,  inter  alia,  in  Boyd  v. 
N.  Y.  and  H.  R.  Co.,  220  Fed.  174,  cited  above,  on  whether  the  allega- 
tions of  an  answer  may  be  considered  along  with  those  of  the  bill,  in 
deciding  whether  to  sustain  or  overrule  a  motion  to  dismiss;  in  Young 
v.  Samuels  &  Bro.,  232  Fed.  784,  on  the  right  of  plaintiff  to  dismiss 
voluntarily,  as  determined  by  the  stage  to  which  proceedings  have 
gone,  and  there  is  a  very  full  citation  of  the  pertinent  cases. 


866  SUITS   IN    EQUITY. 

The  second  portion  of  Equity  Rule  29  requires  defenses  present- 
able by  plea  in  bar  or  abatement  under  the  old  rules  to  be  now  set  up 
in  the  answer.  The  cases  refer  to  this  portion  of  the  rule  very  briefly; 
however,  it  is  clear  that  this  is  a  mandatory  rule,  while  the  earlier 
portion  gives  an  option  to  the  defendant.  Under  the  old  rules  a  plea 
in  bar  might  raise  the  defense  of  the  statute  of  limitations  or  of  frauds, 
of  innocent  purchaser,  account  stated,  of  award,  release,  tender,  pay- 
ment, and  so  forth  (1  Street  Federal  Equity  Practice,  Sec.  832);  while 
by  a  plea  in  abatement  such  matters  of  defense  may  be  raised  as  lack 
of  diversity  of  citizenship,  bankruptcy  of  plaintiff,  another  suit  pend- 
ing, and  plaintiff's  lack  of  capacity  to  sue  because  not  a  corporation 
(1  Street  Federal  Equity  Practice,  Sec.  830).  Such  matters  as  these 
must  now  be  set  out  in  the  answer,  and  if  the  court  think  fit  may  be 
disposed  of  preliminary  to  the  trial. 

Also  bearing  on  the  answer  now  is  Equity  Rule  30,  first  paragraph- 
This  rule  dispenses  with  the  need  for  consistency  in  the  answer,  and 
thereby  changes  the  old  rule  of  pleading.  That  rule  prohibited  a  party 
from  taking  up  inconsistent  positions  in  the  same  litigation  on  the 
theory  that  one  of  the  tw6  positions  must  be  false,  or  that  neither 
was  being  asserted,  and  hence  the  allegations  amounted  to  an  evasion. 

A  common  reason  for  the  old  rule  was  that  an  inconsistency  could 
not  be  supported  by  oath,  although  the  objection  could  have  rested 
equally  well  on  recognized  principles  of  pleading;  and  an  exception 
might  have  been  made  to  the  answer  for  inconsistency,  or  under  cer- 
tain conditions  the  inconsistent  allegation  may  have  been  treated  as 
surplusage. 

In  Sydney  v.  Mugford  Printing  and  Engraving  Co.,  214  Fed.  841,  at 
page  844,  the  court  sa}^s:  "For  the  court  does  not  apprehend  that  any 
one  will  seriously  question  the  statement  that  Rule  30  of  the  new  rules 
was  not  intended  to  nor  did  it  as  a  matter  of  fact  in  any  way  affect  or 
change  the  substantive  law  relating  to  what  could  be  pleaded  as  a  set- 
off or  counterclaim,  as  the  same  obtained  prior  to  the  taking  of  effect 
of  said  rules.  It  seems  to  the  court  that  the  law  on  this  subject  re- 
mains unchanged  and  as  before." 

Here  the  plaintiff  moved  to  strike  out  the  "equitable  defense,  set-off 
and  counterclaim." 

In  Coulston  v.  H.  Franke  Steel  Co.,  221  Fed.  669,  the  motion  of 
plaintiff  was  to  require  defendant  to  make  its  answer  "more  definite 
and  certain"  in  respects  mentioned. 

The  court  found  that  the  answer  did  not  conform  to  the  provisions 
of  Equity  Rule  30  as  to  short  and  simple  terms  of  statement.  He 
compares  this  rule  with  the  code  rule  of  many  of  the  states  requiring 
an  answer  at  law  or  in  equity  to  contain  a  general  or  specific  denial  of 
each  material  allegation  controverted  by  the  defendant. 

The  court  tartly  observes,  at  page  672,  that  "the  old  notion  that  a 
suit  at  law  or  in  equity  is  chiefly  a  game  affording  an  opportunity  for 
the  matching  of  wits  of  counsel  and  for  the  exercise  of  the  ingenuity 


COMMON    FORMS   USED   IN    FRAMING   ANSWERS.  867 

of  courts  is  fast  giving  place  to  the  conception  that  suits  both  at  law 
and  in  equity  should  be  sincere  and-candid  attempts  to  reach  the  real 
point  of  difference  between  the  parties  to  them,  and  to  secure  a  just 
settlement  of  such  difference." 

In  Churchward  International  Steel  Co.  v.  Bethlehem  Steel  Co.,  233 
Fed.  322,  it  is  said  that  a  denial  of  plaintiff's  right  by  a  confession  and 
avoidance  is  not  matter  which  can  be  reached  in  an  answer  by  a  mo- 
tion to  strike,  because  it  is  not  an  affirmative  defense. 

Here  the  defendant  pleaded  that  the  plaintiff  had  assigned  certain 
letters  patent  and  therefore  had  no  right  to  sue  thereon. 

As  to  disposing  of  motion  in  this  case,  the  court  held  the  motion 
over  to  be  ruled  on  as  a  trial  question  to  prevent  "piecemeal"  rulings, 
and  denied  the  motion  until  trial;  the  action  on  the  motion  is  therefore 
within  the  court's  discretion. 

In  Shera  v.  Merchants'  Life  Ins.  Co.,  2Z1  Fed.  484,  the  court  says 
at  page  486:  "Equity  Rule  30  requires  that  the  answer  shall  avoid  'any 
general  denial  of  the  averments  of  the  bill.'  It  requires  statements 
'specifically  admitting  or  denying  or  explaining  the  facts  upon  which 
the  plaintiff  relies.'  So  that  the  court  is  not  limited  to  any  general 
denial,  but  can  consider  in  connection  therewith  the  explanatory  facts; 
but  in  my  judgment  it  is  thus  limited." 

In  Southern  Textile  Machinery  Co.  v.  Foy  Stocking  Co.,  243  Fed. 
917,  at  page  918,  the  court  says:  "The  answer,  for  want  of  knowledge 
and  information,  denies  these  allegations  of  title  and  demands  proof. 
Under  Equity  Rule  30  this  denial  for  want  of  knowledge  is  the  equiva- 
lent of  a  specific  denial,  and  puts  on  the  complainant  the  burden  of 
proving  its  title." 


No.  544. 

Cross-Bill(l)  at  the  End  of  an  Answer. 

Par.  36. 

And  the  Twin  Falls  Salmon  River  Land  and  Water  Com- 
pany by  way  of  a  cross  bill  herein  against  the  plaintiffs  above 
mentioned,  and  all  in  whose  behalf  they  may  be  acting,  and 
also  by  way  of  counterclaim  and  further  answer,  avers  as 
follows : 

That  upon  account  of  the  soil  and  physical  conditions  exist- 
ing upon  said  Salmon  tract  and  upon  the  lands  to  tho  north 
thereof  which  are  likely  to  receive  the  drainage  therefrom, 
that  it  is  absolutely  essential  for  the  best  interests  of  the  said 
Salmon  river  tract  and  of  all  the  settlers  thereon  that  very 
great  care  should  be  used  in  the  application  of  water  to  said 


868  SUITS   IN    EQUITY. 

lands  for  irrigation  purposes,  and  also  in  regard  to  the  amount 
thereof  which  is  applied  for  said  purpose,  and  if  great  care  is 
not  used  in  the  irrigation  of  said  lands  a  large  area  thereof 
will  become  valueless  and  the  security  afforded  by  the  water 
contracts  hereinbefore  mentioned  will  become  lost  and  that 
large  numbers  of  suits  will  be  brought  by  persons  upon  ad- 
joining tracts  for  injury  to  lands  done  by  reason  of  waste 
and  seepage  waters  from  the  Salmon  tract. 

That  it  is  necessary  for  the  settlers  upon  said  tract  to  use 
great  skill  in  the  application  of  water  to  their  said  lands  and 
for  the  Salmon  River  Canal  Company  and  the  Twin  Falls 
Salmon  River  Land  and  Water  Company  to  cause  only  so 
much  water  as  is  necessarily  required  for  the  irrigation  of 
crops  to  be  run  into  said  canals  described  in  the  contract, 
"Exhibit  A." 

That  the  application  of  the  amount  of  water  demanded  by 
the  plaintiffs  in  the  amended  bill  herein  and  the  manner  of 
use  desired  and  demanded  therein  would  result  in  great  dam- 
age and  injury  to  a  large  portion  of  the  lands  on  the  said 
Salmon  tract  and  in  the  destruction  of  the  security  afforded 
to  the  Twin  Falls  Salmon  River  Land  and  Water  Company 
and  its  successors  in  interest  under  the  terms  of  the  water 
contract,  "Exhibit  C." 

That  under  the  terms  of  the  contract,  "Exhibit  A,"  at- 
tached to  the  amended  bill  herein,  it  is  the  duty  of  the  Twin 
Falls  Salmon  River  Land  and  Water  Company,  while  it  shall 
retain  control  of  the  said  Salmon  River  Canal  Company,  as 
specified  in  said  contract,  "Exhibit  A,"  to  cause  water  to  be 
measured  to  users  from  the  place  of  diversion  at  the  main 
laterals  of  the  irrigation  system  in  such  quantities  and  at  such 
times  as  the  condition  of  the  crops  and  weather  may  deter- 
mine, but  according  to  such  rules  and  regulations  based  upon 
a  system  of  distribution  of  water  to  the  irrigators  in  turn  and 
by  rotation  as  will  best  protect  and  serve  the  interests  of  all 
the  users  of  water  from  said  canal  system. 

That  the  use  of  a  rotation  system  is  necessary  in  the  distri- 
bution of  the  water  to  settlers  on  said  tract  in  order  that  the 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  869 

minimum  amount  of  injury  may  be  done  to  the  lands  irrigated 
from  said  canal  system  and  in  order  that  the  security  repre- 
sented by  the  water  contracts  mentioned  in  the  amended  bill 
herein  may  not  be  impaired,  and  also  for  the  purpose  of  most 
equitably  and  efficiently  distributing  the  water  supply  in  order 
that  effective  use  may  be  made  thereof  by  all  settlers  upon 
said  tract  and  in  order  that  an  unnecessary  amount  of  water 
may  not  be  used. 

That  the  plaintiffs  herein  are  members  and  officers  of  a  set- 
tlers' association,  being  a  voluntary  association  organized  by  a 
portion  of  the  settlers  on  said  project,  and  that  the  said  set- 
lers'  association  and  the  plaintiffs  in  the  amended  bill  herein, 
the  officers  thereof,  have  joined  together  and  conspired  to  pre- 
vent the  use  of  a  rotation  system  in  the  use  of  water  and  to 
prevent  the  use  of  water  on  said  tract  under  proper  and  suit- 
able rules  and  regulations  in  accordance  with  the  terms  of 
the  said  contract,  "Exhibit  A,"  and  to  prevent  the  proper  and 
suitable  distribution  of  the  water  supply  under  suitable  rules 
and  regulations  now  in  use  and  those  which  will  hereafter  be 
made,  and  that  they  will  continue  to  so  join  together  and  con- 
spire and  bring  numerous  and  vexatious  suits  in  regard  to 
said  matter  unless  restrained  by  the  order  of  this  court;  that 
the  plaintiffs  herein  are  acting  for  themselves  and  for  other 
persons  members  of  the  said  water  users'  association ;  that  the 
joining  together  and  conspiring  and  bringing  of  the  suits 
above  mentioned  are  adverse  to  the  interests  of  the  settlers 
and  water  users  on  said  tract  not  members  of  the  settlers' 
association ;  that  it  is  the  duty  of  the  Twin  Falls  Salmon  River 
Land  and  Water  Company  and  of  the  Salmon  River  Canal 
Company,  Limited,  to  handle  and  distribute  the  water  supply  in 
such  manner  as  will  best  protect  and  serve  the  interests  of  all 
the  users  of  water  from  the  canal  system,  and  that  this  can 
not  be  done  unless  the  rules  and  regulations  prescribed  by  the 
Twin  Falls  Salmon  River  Land  and  Water  Company  and 
the  Salmon  River  Canal  Company,  Limited,  are  complied 
with  and  unless  a  proper  and  suitable  system  of  the  distribu- 
tion of  water  by  rotation  is  maintained. 


(870  SUITS   IN    EQUITY. 

That  unless  said  rules  and  regulations  are  reserved  and 
said  system  of  rotation  maintained,  it  will  be  impossible  to 
distribute  the  water  supply  to  the  irrigators  upon  said  tract  in 
such  manner  as  will  best  protect  and  serve  the  interests  of  all 
of  the  users  of  water  from  said  canal  system,  and  the  security 
represented  by  the  contracts  made  in  the  form,  "Exhibit  C," 
will  be  greatly  impaired  and  in  part  destroyed. 

Wherefore,  the  Twin  Falls  Salmon  River  Land  and  Water 
Company  prays  that  the  amended  bill  of  the  plaintiff  herein 
may  be  dismissed  and  that  the  plaintiffs  herein  and  all  the 
members  of  the  settlers'  association,  of  which  said  plaintiffs  are 
members  and  officers,  be  enjoined  and  restrained  from  bringing 
any  suits  or  in  any  manner  interfering  with  the  delivery  and 
{distribution  of  the  water  supply  through  the  irrigation  system 
herein  mentioned,  according  to  the  rules  and  regulations  estab- 
jlished  therefor  and  in  accordance  with  the  rotation  system, 
[and  said  Twin  Falls  Salmon  River  Land  and  Water  Com- 
pany prays  that  all  proper  relief  may  be  granted  herein. 

S.  H.  H., 

[Verification.]  Attorney  for  Defendant. 

(1)  Cross  bill  and  counterclaim. 

Equity  Rule  30,  in  the  second  paragraph  thereof,  requires  in  the 
answer  a  statement  of  counterclaim  arising  out  of  the  transaction 
which  is  the  subject-matter  of  the  suit,  and  permits  the  setting  out, 
without  cross  bill,  of  any  set-ofif  or  counterclaim  against  the  plaintiff 
which  might  be  the  subject  of  an  independent  suit  in  equity  against 
the  plaintifif,  with  the  efTect  of  a  cross  suit,  enabling  the  court  to  pro- 
nounce a  final  judgment  in  the  suit  on  both  original  and  cross  claims. 

This  rule  has  been  the  occasion  of  much  speculation  and  interpreta- 
tion on  the  part  of  the  courts. 

In  Terry  Steam  Turbine  Co.  v.  B.  F.  Sturtevant  Co.,  204  Fed.  103, 
the  court  confines  counterclaim  and  set-off  which  might  be  the  subject 
of  an  independent  suit  to  one  arising  out  of  the  transaction  which  is 
the  subject-matter  of  the  suit,  and  indulges  in  a  discussion  of  this  rule 
on  pages  104-106. 

The  "counterclaim"  here  asserted  was  contained  in  a  proposed  sup- 
plemental answer  to  an  infringement  suit,  and  set  out  the  infringement 
of  another  patent  by  plaintifif,  and  prayed  injunction  and  an  account- 
ing thereon.  The  court  denied  the  request  on  the  ground  that  this 
claim  for  tort  could  not  be  on  equitable  set-off;  that  it  did  not  arise  out 
of  the  transaction  which  is  the  subject-matter  of  the  suit- 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  871 

In  Williams  Patent  Crusher  and  Pulverizer  Co.  v.  Kinsey  Mfg.  Co., 

205  Fed.  375  (W.  Dist.  N.  Y.),  the  suit  was  for  infringement  of  a  patent, 
and  in  the  answer  a  counterclaim  was  set  out  for  unfair  competition 
by  spreading  abroad  misrepresentations  as  to  the  scope  of  the  claims, 
the  ownership  of  the  patent  and  the  eflfect  of  the  reissue;  these  were 
all  tortious  acts.  The  court  held  they  could  not  have  been  litigated  in 
a  cross  bill  or  cross  suit  prior  to  the  new  equity  rules,  and  hence  could 
not  be  included  in  a  counterclaim  in  the  answer  under  Rule  30.  The 
court's  construction  of  the  second  clause  of  the  second  paragraph  of 
Rule  30  is  the  narrow  one,  and  the  counterclaim  in  the  second  clause 
is  regarded  as  of  the  kind  mentioned  in  the  first  clause,  namely,  one 
that  arises  out  of  the  subject-matter  of  the  suit. 

In  Marconi  Wireless  Telegraph  Co.  v.  Natl.  Electric  Signaling  Co., 

206  Fed.  295,  infringement  of  a  certain  patent  was  alleged,  and  in  the 
answer  infringement  of  certain  other  patents  was  set  out  as  a  counter- 
claim, and  on  the  counterclaim  defendants  prayed  injunction  and 
accounting.  The  court  gave  Rule  30  a  liberal  construction,  taking  the 
view  that  the  second  clause  of  the  second  paragraph  was  not  limited 
by  the  first  clause,  criticising  204  Fed.  103  above  and  taking  the  view 
that  the  only  limitation  is  imposed  by  the  consideration  of  the  issues 
that  can  be  properly  disposed  of  in  a  "final  judgment."  The  court 
also  supposed  that  it  might  later  appear  that  this  counterclaim  was  in 
the  category  of  matters  arising  "from  the  same  transaction." 

Clearly  the  court  here  took  the  view  that  the  permissive  counter- 
claim might  set  out  an  unliquidated  demand  in  the  nature  of  a  tort, 
land  therefore  overruled  the  motion  to  strike  the  counterclaim  from 
the  answer. 

In  Vacuum  Cleaner  Co.  v.  American  Rotary  Valve  Co.,  208  Fed.  419 
(S.  Dist.  N.  Y.),  in  a  suit  for  patent  infringement,  the  answer  set  up  a 
counterclaim  for  circulating  false  statements  about  defendant's  cleaner 
,and  threatening  suits  against  defendant's  customers.  Injunction  and 
'damages  were  prayed.  The  motion  to  strike  out  this  counterclaim 
was  overruled,  because  it  fell  "within  the  second  category  of  counter- 
claims allowable  under  new  Equity  Rule  30,  since  it  'might  be  made 
the  subject  of  an  independent  suit  in  equity  against  the  plaintiff.'  " 

In  Motion  Picture  Patents  Co.  v.  Eclair  Film  Co.,  208  Fed.  416 
(Dist.  N.  J.),  the  suit  was  for  patent  infringement,  and  the  defense 
set  up  was  that  the  plaintiff  exercised  a  monopoly  contrary  to  the 
federal  anti-trust  act,  and  was  guilty  of  unfair  competition  in  the  use 
of  the  patents.  A  counterclaim  was  set  out  asking  damages.  M'otion 
to  strike  out  the  counterclaim  was  granted  because  the  claim  was 
purely  legal,  and  in  that  view  no  discussion  of  Rule  30  became 
necessary. 

In  Salt's  Textile  Mfg.  Co.  v.  Tingue  Mfg.  Co.,  208  Fed.  156  (Dist. 
Conn.),  the  suit  was  for  patent  infringement,  and  defendant  counter- 
claimed  by  setting  out  that  long  anterior  to  the  plaintiff's  patent  de- 
fendant had  given  to  plaintiff  a  sample  of  cloth  which  defendant  had 


872  SUITS   IN    EQUITY. 

long  been  making  which  was  like  the  cloth  subsequently  manufac- 
tured under  the  patent  in  suit,  and  alleged  that  plaintiff  admitted  it 
was  an  answer  to  the  alleged  infringement,  but  thereafter  brought 
the  suit  and  caused  defendant  damages  in  advertising  to  the  trade  the 
pendency  of  the  suit. 

The  court  held  that  the  counterclaim  set  out  a  transaction  that 
grew  out  of  the  plaintiff's  claim  of  infringement  of  his  patent,  and  is 
within  the  purview  of  Rule  30.  The  court  says  that  "Rule  30  should 
be  construed  liberally,  not  narrowly." 

In  Adamson  v.  Shaler,  208  Fed.  566  (E.  Dist.  Wis.),  suit  was  brought 
for  patent  infringement,  and  defendant  set  up  two  counterclaims:  one 
for  unfair  competition  in  trade,  the  other  a  cause  of  action  for  infringe- 
ment of  patents,  and  motion  was  made  to  strike  out  the  latter.  The 
court  adopts  the  views  and  conclusion  of  Judge  Dodge  in  204  Fed.  103 
(above). 

Judge  Geiger  here  argues  that  if  the  broad  construction  is  given 
to  this  portion  of  Rule  30,  several  results  would  follow: 

(1)  The  statutory  jurisdiction  would  be  indirectly  enlarged  because 
defendants  who  would  otherwise  be  unable  to  invoke  the  federal  juris- 
diction may  do  so  by  counterclaim  on  an  unrelated  equitable  cause 
of  action;  (2)  a  plaintiff  would  not  be  entitled  to  assert  his  right  to 
affirmative  relief  on  the  subject-matter  of  the  counterclaim,  since  this 
can  not  be  done  by  cross  bill  or  any  species  of  reply  known  to  equity. 
Hence  the  court  grants  the  motion. 

In  McGill  V.  Sorensen,  209  Fed.  876  (E.  Dist.  N.  Y.),  the  suit  was 
for  patent  infringement  and  the  counterclaim  set  up  a  charge  of  in- 
fringement of  defendant's  patent  by  plaintiff;  but  inasmuch  as  it  was 
not  alleged  that  the  infringing  plaintiff  had  a  place  of  business  in  the 
district  of  trial,  as  required  by  statute  to  establish  venue,  the  motion 
to  strike  out  the  counterclaim  was  granted. 

Presumably,  with  that  allegation  in,  the  counterclaim  would  have 
stood  the  test  of  the  motion. 

The  same  judge — Chatfield — rendered  the  decision  here  as  in  206 
Fed.  295  (above),  to  the  same  effect. 

In  Electric  Boat  Co.  v.  Lake  Torpedo  Boat  Co.;  215  Fed.  377  (Dist. 
N.  J.),  the  suit  was  for  infringement  of  patents,  and  the  answer  con- 
tained a  counterclaim  for  infringement  of  certain  other  patents,  for 
unlawful  competition  and  for  malicious  prosecution. 

In  deciding  the  motion  to  strike  out  the  counterclaim,  the  court 
reviewed  the  decisions  on  the  second  paragraph  of  Rule  30,  and  held 
that  the  main  purpose  of  the  permissive  part  of  the  rule  "is  to  enable 
the  defendant  by  answer  to  do  precisely  that  which  the  plaintiff,  by 
Rule  26,  may  do  in  one  bill,  viz:  join  *  *  *  as  many  causes  of  action 
cognizable  in  equity  as  he  may  have  against  the  plaintiff. 

"This  difference  as  to  the  main  purpose  of  this  part  of  the  rule 
leads  to  radically  different  results.  In  the  former  view  the  term 
cross  bill    (drawing  to  .its  previously   accepted   meaning)    is  given   a 


COMMON    FORMS    USED    IX    FRAMING    ANSWERS.  873 

controlling  efifect  upon  what  follows,  whereas  under  the  latter  view 
the  phrase  without  cross  bill  is  but  a  parenthetical  one,  subordinate 
in  its  effect-  Dominated  by  this  former  view,  the  learned  judge,  in  the 
Turbine  case  (204  Fed.  103),  was  led  to  conclude  that  no  other  counter- 
claims than  chose  covered  by  the  mandatory  provision  could  be  set 
up  under  the  permissive  provision  of  the  rule. 

"To  so  confine  the  right  to  counterclaim,  in  my  judgment,  is  to  un- 
duly limit  the  meaning  of  the  term  cross  bill  as  used  in  such  rule, 
disregard  the  manifest  intent  to  distinguish  between  the  kinds  of 
counterclaim  that  must  or  may  be  set  up  in  the  answer,  and  to  over- 
look entirely  the  plain  purpose  of  the  new  rules  to  permit  the  parties 
to  settle  their  differences  in  one  suit,  provided  they  can  be  conveniently 
disposed  of  together. 

"The  counterclaim  arising  out  of  the  transaction  which  is  the  sub- 
ject-matter of  the  suit,  and  which  under  the  rule  must  be  set  up  in 
the  answer,  covers,  broadly  stated,  all  matters  which  heretofore  could 
have  been  pleaded  by  cross  bill.  Therefore  to  limit  the  option  given 
to  the  defendant  to  set  out  any  set-off  or  counterclaim  against  the 
plaintiff  which  might  be  the  subject  of  an  independent  suit  in.  equity 
against  him  to  such  claims  as  must  be  set  up,  is  to  make  the  option 
fruitless." 

Further,  the  court  says  that  cross  bill  is  synonymous  with  cross 
suit  and  cross  claim. 

Rule  26  and  Rule  30,  in  his  view,  place  both  parties  on  an  equal 
footing  in  the  matter  of  joining  causes  of  action.  Concluding  on  this 
point,  the  court  says  at  page  382: 

"In  my  judgment.  Rule  30,  whether  read  alone  or  in  the  light  of 
the  other  new  rules,  requires,  subject  to  jurisdictional  limitations  to  be 
presently  considered,  an  interpretation  permitting  the  defendant  to 
set  up  against  the  plaintiff  counterclaims  unrelated  to  the  transaction 
made  the  basis  of  the  plaintiff's  bill,  provided  they  might  be  the  'sub- 
ject of  an  independent  suit  in  equity  against  him.'  " 

In  U.  S.  Expansion  Bolt  Co.  v.  H.  G.  Kroncke  Hdwe.  Co.,  234  Fed. 
868  (7  C.  C.  A.),  a  patent  infringement  suit,  the  counterclaim  set  out 
infringement  of  two  patents  of  defendant  and  acts  of  unfair  competi- 
tion, asking  injunction  and  accounting. 

The  court  held  that  the  plaintiff  had  waived  any  right  to  object  to 
the  jurisdiction  over  the  counterclaim  by  bringing  its  suit  in  Wiscon- 
sin, and  therefore  the  question  was  one  of  equity  jurisdiction,  not 
federal  jurisdiction,  and  Rule  30  permitted  the  filing  of  the  counter- 
claim. The  court  then  considers  the  merits  involved  in  the  allegations 
of  the  counterclaim  for  the  infringement,  and  finds  no  infringement. 

If  infringement  had  been  found,  the  unfair  competition  might  have 
been  regarded  as  in  aggravation  of  damages,  but  here  it  must  be  re- 
garded separately;  the  charge  is  brought  by  a  corporation  of  New 
York  against  a  corporation  of  New  York  in  Wisconsin,  where  the 
suit  was  pending  on  the  infringement  charges  made  by  plaintiff,  and 


874  SUITS  IN   EQUITY. 

the  only  ground  for  federal  jurisdiction  on  the  unfair  competition 
charge  could  be  diversity  of  citizenship;  but  between  two  New  York 
corporations  clearly  that  did  not  exist  and  the  suit  on  that  ground 
could  not  be  maintained  in  a  federal  court  under  the  circumstances. 

Note  that  the  circuit  court  of  appeals  raises  no  objection  to  such 
counterclaim  where  the  proper  diversity  should  exist  and  the  suit 
should  be  brought  in  the  proper  district. 

Another  suit  for  infringement  in  which  counterclaim  is  set  up  for 
infringement  by  plaintiff  is  reported  in  235  Fed.  898,  Christensen  v. 
Westinghouse  Traction  Brake  Co.  (W.  Dist.  Penn.).  The  court  re- 
views the  cases  and  follows  Judge  Dodge  in  204  Fed.  103,  and  says 
on  page  900: 

"Giving  proper  effect  to  the  words  'without  cross  bill'  and  the 
words  'shall  have  the  same  effect  as  a  cross  bill,'  it  seems  reasonably 
clear  that  the  answer  was  intended  to  perform  the  function  of  a  cross 
bill,  making  the  cross  bill  no  longer  necessary;  the  matter  thus  pleaded 
in  the  answer  having  the  same  effect  as  a  cross  suit.  This  could  not 
be  true  if  the  defendant  is  permitted  in  effect  to  file  an  original  bill  by 
way  of  counterclaim  having  no  connection  with  the  subject  of  the 
original  bill." 

Further,  the  court  says  that  the  counterclaim  of  the  second  clause 
of  the  second  paragraph  of  Rule  30  is  one  arising  out  of  the  trans- 
action which  is  the  subject-matter  of  the  suit,  and  therefore  only  one 
kind  of  counterclaim  is  included  in  Rule  30. 

In  Colman  v.  American  Warp  Drawing  Machine  Co.,  235  Fed.  531 
(Dist.  Mass.),  a  suit  for  infringement  of  a  patent  was  met  by  a  counter- 
claim asking  for  a  decree  of  the  court  awarding  the  priority  of  inven- 
tion of  the  claims  involved  to  the  defendant,  in  accordance  with  R.  S. 
U.  S.,  Sec.  4915.  Such  claim,  upon  which  defendant  might  have  brought 
an  original  suit,  was  held  here  not  to  constitute  a  counterclaim  under 
Rule  30.  The  court  here  follows  its  views  expressed  in  204  Fed.  103^ 
above. 

In  Board  of  Commissioners  v.  Wills  &  Sons,  236  Fed.  362  (E.  Dist. 
N.  Car.),  mandatory  injunction  was  prayed  to  compel  performance  of 
a  contract  to  dredge  and  drain  a  certain  district.  Defendants  inter 
alia,  by  way  of  counterclaim,  prayed  that  certain  notes  delivered  to 
defendants  for  work  performed  be  adjudged  a  lien,  that  a  certain 
trust  deed  be  declared  valid,  that  certain  undelivered  notes  be  ad- 
judged invalid  and  not  secured  by  a  prior  lien,  and  that  plaintiffs  be 
ordered  to  raise  money  to  pay  defendants  for  work  to  be  completed. 

This  counterclaim,  the  court  says  at  page  386,  "prior  to  the  adop- 
tion of  the  new  equity  rules  (Rule  30),  would  have  been  set  up  by  a 
cross  bill.  If  complainant's  bill  was  without  equity,  it  would  have  been 
dismissed,  and  if  the  cross  bill  was  sustained,  a  decree  rendered  upon  it 
for  defendants. 

"Under  the  present  rule,  assimilating  the  practice  to  that  of  the 
code  of  civil  procedure,  the  same  result  is  reached,  not  by  dismissing 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  875 

the  bill,  but  by  making  the  decree  upon  the  counterclaim,"  and  decreed 
accordingly. 

In  Ohio  Brass  Co.  v.  Hartman  Electrical  Mfg.  Co.,  243  Fed.  629 
(N.  Dist.  Ohio),  a  suit  for  patent  infringement,  in  which  the  counter- 
claim set  up  unfair  competitive  methods  and  business  practices  and 
unfounded  threats  of  suits  against  defendant's  customers,  the  court 
held  that  the  cause  of  action  attempted  to  be  set  out  in  this  counter- 
claim is  an  independent  one  and  not  a  counterclaim  under  Rule  30;  it 
reviewed  the  cases  and  preferred  to  follow  the  narrow  construction  of 
204  Fed.  103,  and  other  cases  (above),  and  expressly  approved  the 
reasoning  of  Judge  Thompson,  in  235  Fed.  899  (above).  The  courts 
adopting  this  reasoning  do  so  because  in  their  opinion  it  could  not 
have  been  the  purpose  of  Rule  30  to  enlarge  the  practice  and  jurisdic- 
tion of  equity. 

In  Knupp  V.  Bell,  243  Fed.  157  (4  C  C.  A.),  the  counterclaim  set  up 
was  found  to  arise  out  of  the  transaction  which  was  the  subject-matter 
of  the  suit  and  judgment  thereon  was  not  disturbed. 

In  Paramount  Hosiery  Form  Drying  Co.  v.  Walter  Snyder  Co. 
et  al.,  244  Fed.  192  (E.  Dist.  Penn.),  the  court  gives  a  broad  construc- 
tion to  Rule  30,  second  paragraph,  second  clause,  in  view  of  the  pro- 
visions of  Rule  26,  thereby  placing  the  plaintiff  and  defendant  upon 
an  equality  as  to  liberty  of  introducing  into  one  suit  a  number  and 
variety  of  causes  of  actions  and  defenses.  Judge  Dickinson's  views 
expressed  in  this  case  are  illuminating. 

In  Champion  Spark  Plug  Co.  v.  Champion  Ignition  Co.,  247  Fed. 
200  (E.  Dist.  Mich.),  the  bill  alleged  infringement  of  a  trade-mark  and 
unfair  competition;  the  answer  contained  a  counterclaim  setting  out 
infringement  of  defendant's  patents  by  the  sale  of  spark  plugs  bearing 
the  trade-mark  in  question.  The  question  arising  involves  both  federal 
jurisdiction  and  equity  jurisdiction.  On  the  latter  point  the  court 
held  that  the  counterclaim  here  arose  out  of  the  transaction  which  is 
the  subject-matter  of  the  suit,  and  therefore  covered  by  the  first  clause 
of  the  second  paragraph  of  Rule  30. 

On  the  first  point  the  court  held  that  plaintiff  had  waived  its  right 
to  object  to  venue;  the  plaintiff  was  a  Delaware  corporation  having 
its  principal  office  and  place  of  business  in  Ohio,  and  sued  a  corpora- 
tion resident  of  Michigan  in  its  home  district.  By  bringing  its  suit 
here  it  was  virtually  saying  that  it  was  rendering  itself  liable  to  suit 
there  in  any  manner  provided  by  law,  especially  as  here  to  suit  by 
counterclaim. 

The  court  takes  occasion  to  review  earlier  decisions  involving  this 
portion  of  Rule  30,  and  expresses  his  disagreement  with  206  Fed.  295, 
and  other  cases  (see  above). 

On  page  206  the  court  (Judge  Tuttle)  says:  ^J 

"I  am  aware  that  a  few  district  courts  have  held  that  this  rule  do^s 
not  permit  the  filing  of  a  set-off  or  counterclaim  in  a  suit  unless  the 
subject-matter  of  such  counterclaim  might,  under  the  previous  prac- 


876  SUITS    IN    EQUITY. 

tice,  have  been  pleaded  by  a  cross  bill,  and  that  the  only  effect  of  this 
rule  is  to  allow  a  defendant  to  use  its  answer  as  a  substitute  for  a 
cross  bill,  by  setting  out  in  such  answer,  as  a  counterclaim,  any  matter 
which  mighi  theretofore  have  been  alleged  by  its  cross  bill,  but  only 
if  it  be  so  germane  to  the  issues  in  suit  that  it  might  previously  have 
been  pleaded  by  a  cross  bill.  I  can  not,  however,  agree  with  this 
view,  which,  it  seems  to  me,  disregards  both  the  purpose  and  the 
clearly  expressed  language  of  the  rule.  If  this  language  means  any- 
thing, it  means  that  in  such  answer  a  defendant  may  set  out  any 
counterclaim  which  might  be  the  subject  of  an  independent  suit  in 
equity,  and  that  the  subject-matter  of  such  counterclaim  is  not  limited 
to  matters  which  might,  under  the  old  practice,  have  been  the  subject- 
matter  of  a  cross  bill"  (citing  cases). 

Bankston  v.  Commercial  Trust  and  Savings  Bank,  250  Fed.  985. 
Note  secured  by  lien  on  realty  is  assigned;  assignee  sues  to  foreclose 
the  lien.  Partial  defense  that  assignment  was  not  recorded  as  re- 
quired by  statute,  hence,  per  statute,  "plaintiff  must  forfeit  to  debtor 
10  per  cent." 

Held,  defense  can  not  be  set  up  in  answer  under  Equity  Rule  30, 
since  the  claim  is  not  one  which  could  be  the  subject  of  an  independent 
suit  in  equity,  nor  a  claim  arising  out  of  the  transaction  which  is  the 
subject-matter  of  the  suit.    The  claim  is  enforceable  only  at  law. 

Caflish  V.  Humble,  251  Fed.  1,  holds  that  a  counterclaim  for  dam- 
ages for  breach  of  the  contract  sued  on  arises  out  of  the  transaction 
which  is  the  subject-matter  of  the  suit,  and  by  Equity  Rule  30,  first 
clause  of  the  second  paragraph,  defendant  is  required  to  set  up  the 
counterclaim  or  waive  it. 

In  Howard  v.  Leete,  257  Fed.  918,  at  pages  923  and  924,  the  court 
says:  "A  construction  of  the  first  clause  (of  Equity  Rule  30)  as  relating 
only  to  demands  'which  might  be  the  subject  of  an  independent  suit  in 
equity,'  can  not  be  accepted.  To  do  so  would  not  only  require  the 
interpolation  bodily  of  a  clause  in  terms  made  applicable  only  to  the 
second  branch  of  the  rule,  but  would  ignore  the  existing  equity  prac- 
tice. The  object  of  the  rule  was  to  simplify  and  extend,  not  to  curtail, 
an  existing  practice  designed  to  prevent  multiplicity  of  suits." 


No.  545. 

Allegations  of  no  Jurisdiction  in  the  Answer. 

Thirtieth.  That  the  bill  of  complaint  herein  does  not  allege 
facts  sufficient  to  grant  unto  this  court  jurisdiction  of  the 
cause  of  action  or  of  the  person  of  the  said  defendant,  The 
Shubert  Theatrical  Company,  a  New  Jersey  corporation,  in 
that  it  appears  upon  the  face  of  the  bill  of  complaint  that 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  877 

the  said  defendant  is  a  corporation  organized  and  existing 
under  the  laws  of  the  state  of  New  Jersey,  and  a  citizen  and 
resident  of  the  state  of  New  Jersey,  and  is  not  a  resident  or 
inhabitant  of  the  southern  district  of  New  York  or  the  state 
of  New  York,  and  that  there  is  not  such  a  diversity  of 
citizenship  between  the  complainant  and  the  defendants  herein 
which  would  grant  unto  this  court  jurisdiction  of  the  alleged 
cause  of  action  mentioned  in  the  bill  of  complaint,  and  that 
it  further  appears  upon  the  face  of  the  bill  of  complaint 
that  the  complainant  herein  is  a  resident  of  the  state  of 
New  York  in  the  southern  district  of  New  York,  and  the 
bill  of  complaint  further  fails  to  allege  jurisdictional  facts 
sufficient  to  grant  unto  this  court  jurisdiction  of  the  cause  of 
action  or  of  the  persons  in  that  it  fails  to  allege  the  residence 
of  the  defendant  Lee  Shubert,  of  the  defendant  Jacob  J. 
Shubert;  of  the  defendant  Irving  M.  Dittenhoefer  as  receiver 
in  bankruptcy,  of  the  said  Theodore  A.  Liebler  and  George 
C.  Tyler. 

And  now  the  defendant  The  Shubert  Theatrical  Company 
(a  New  Jersey  corporation)  having  answered  all  and  singular 
those  portions  of  the  bill  of  complaint  material  and  neces- 
sary to  answer,  prays  that  notwithstanding  it  has  answered 
all  the  various  allegations  of  the  bill  of  complaint  that  the 
court  dismiss  the  bill  of  complaint  for  lack  of  jurisdiction 
over  the  party  defendant  before  requiring  a  trial  of  the 
various  disputed  questions  in  the  suit,  and  this  defendant 
prays  to  be  hence  dismissed  with  its  reasonable  costs  and 
charges  herein  most  wrongfully  sustained,  and  the  funds 
in  the  possession  of  the  complainant  be  given  to  The  Shubert 
Theatrical  Company  (New  Jersey  corporation). 

The  Shubert  Theatrical  Company, 

By  Wm.  Klein, 

Secretary. 
William  Klein, 

Solicitor  for  Defendant 

Shubert  Theatrical  Company. 


878  SUITS   IN    EQUITY. 

No.  546. 

Answer  of  Railway  in  the  Hands  of  Receivers. 

[Caption.] 

Now  comes  the  defendant,  The  Chicago,  Rock  Island  and 
Pacific  Railway,  and  for  its  answer  to  complainant's  bill 
specifically  admits  each  and  all  of  the  averments  in  said  bill 
of  complaint  contained,  except  as  hereinafter  qualified  or 
specifically  denied.  Such  admission  is  intended  to  be  of  the 
same  force  and  effect  as  if  the  averments  of  the  bill  were 
herein  repeated  at  length,  save  only  as  the  same  are  herein 
modified  or  denied. 

And  in  this  behalf  defendant  avers  that  on  the  20th  day 
of  April,  A.  D.  1915,  Jacob  M.  Dickinson,  and  Henry  U. 
Mudge,  both  of  Chicago,  in  the  state  of  Illinois,  were  ap- 
pointed receivers  by  this  honorable  court  of  all  and  singular 
the  railroads,  lands,  property,  assets,  rights,  and  franchises 
of  defendant,  including  all  other  railroads  and  property  and 
assets,  real,  personal  and  mixed,  owned,  leased  or  operated 
by  defendant.  And  defendant  avers  that  since  that  date  and 
up  to  the  present  time  the  said  receivers  under  said  order  of 
this  honorable  court,  have  been  and  are  now  managing  and 
operating  its  said  railroads  and  properties. 

And  this  defendant,  having  fully  answered,  prays  to  be 
hence  dismissed  with  its  reasonable  charge  in  this  behalf 
most  wrongfully  sustained. 

The  Chicago,  Rock  Island  &  Pacific 

Railway  Company, 

By  G.  H.  C, 
Vice-President. 
A.  B.  and  C.  D., 

Defendant's  Solicitors. 

[Vcrification.l 


COMMON    FORMS    USED   IN    FRAMING    ANSWERS.  879 

No.  547. 

Answer  of  Receivers  of  Railway. 

[Caption.] 

Now  come  the  defendants,  Jacob  M.  Dickinson  and  Henry 
U.  Mudge,  as  receivers  of  The  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  and  for  their  answer  to  complain- 
ant's bill  specifically  admit  each  and  all  of  the  averments 
in  said  bill  of  complaint  contained,  except  as  hereinafter 
qualified  or  specifically  denied.  Such  admission  is  in- 
tended to  be  of  the  same  force  and  effect  as  if  the  averments 
of  the  bill  were  herein  repeated  at  length,  save  only  as  the 
same  are  herein  modified  or  denied. 

And  in  this  behalf  defendants  aver  that  they  have  refused 
to  accept,  receive,  transport,  carry  or  deliver  beer  or  other 
fermented  malt  liquors  sold  by  the  complainants,  or  any  of 
them  at  their  place  of  business  and  especially  at  the  place  of 
business  at  Rock  Island,  Illinois,  to  persons  residing  in  the 
state  of  Iowa  who  had  thereafter  purchased  the  same  for 
their  own  personal  use  and  private  consumption  and  who  de- 
sired and  directed  that  the  same  be  transported  into  the  state 
of  Iowa  for  delivery  therein  to  the  purchasers  at  the  places 
where  they  reside,  including  such  shipments  of  beer  and  fer- 
mented malt  liquors  in  respect  to  which  the  purchasers  found 
it  convenient  or  necessary  or  deemed  it  expedient  to  author- 
ize and  direct,  upon  their  written  order  in  each  instance  and 
for  such  shipment,  the  delivery  of  same  to  some  specific  per- 
son or  4lrayman  for  completion  of  delivery  to  the  purchasers 
at  their  places  of  residence.  And  they  admit  that  they  will 
continue  their  refusal  aS  aforesaid  unless  restrained  by  the 
order,  judgment  and  decree  of  this  Honorable  Court. 

Unless  so  restrained  the  defendants  will  persist  in  said 
refusal  because  the  receipt  and  transportation  of  said  beer 
and  other  fermented  malt  liquors  from  said  points  in 
complainants'  bill  mentioned  consigned  to  persons  residing 
in  the  state  of  Iowa  and  the  delivery  thereof  to  persons 
other  than  the  consignees,   even  upon  the   written  order  in 


880  SUITS   IN    EQUITY. 

each  instance  and  for  each  shipment  of  the  bona  fide  con- 
signee, solely  for  the  purpose  of  carrying  said  beer  or  other 
fermented  malt  liquors  from  the  railway  station  to  the  place 
of  residence  of  the  consignee,  are  deemed  a  violation  or  viola- 
tions of  the  Acts  of  Congress  of  the  United  States,  especially 
the  enactment  entitled  "An  Act  divesting  intoxicating  liquors 
of  their  interstate  character  in  certain  cases,"  and  of  the 
statutes  of  the  state  of  Iowa,  particularly  Section  2421 -A, 
Supplemental  Supplement  1915,  entitled  "An  Act  requiring 
common  carriers  of  intoxicating  liquors  to  keep  a  daily  record 
of  such  shipments ;  prohibiting  the  delivery  of  such  shipments 
unless  so  recorded ;  providing  for  inspection  of  such  records 
by  certain  public  officers  designated;  and  making  the  failure 
to  comply  with  the  requirements  of  this  act  a  misdemeanor." 

Said  refusal  was  not  made  arbitrarily,  nor  with  any  view 
of  depriving  complainants  herein  of  their  legal  rights,  but 
only  because  of  defendants'  desire  to  make  due  compliance 
with  the  acts  of  the  Congress  of  the  United  States  and  the 
laws  of  the  state  of  Iowa. 

The  defendants  deny  the  averments  contained  in  the  first 
paragraph  of  Section  7  of  the  said  bill  of  complaint  and 
deny  that  there  is  no  valid  law  of  the  state  of  Iowa  or  of  the 
United  States  which  prohibits  or  prevents  defendants  from 
receiving  and  transporting  shipments  of  beer  or  other  fer- 
mented malt  liquors  under  the  circumstances  therein  set  out: 
but,  on  the  contrary,  the  defendants  aver  that  it  was  their 
duty,  unless  it  shall  be  judged  that  the  said  laws  hereinbe- 
fore mentioned  or  either  of  them  are  invalid,  to  refuse 
to  accept,  receive,  transport,  carry  or  deliver  such  con- 
signments;  and  in  this  behalf  the  defendants  aver  that, 
at  all  times  mentioned  in  the  bill  of  complaint  and  this  answer 
thereto,  the  laws  therein  referred  to  still  are  in  full  force  and 
efifect,  and  control  and  govern  defendants  in  the  transporta- 
tion and  carriage  of  beer  and  other  fermented  malt  liquors 
within  said  state  of  Iowa. 

In  addition  to  the  foregoing  reasons  and  considerations 
which  induce  defendants  to  decline  said   shipments,   defend- 


COMMON    FORMS    USED    IN    FRAMING    ANSWERS.  881 

ants  aver  that  penalticb  and  possible  arrests  for  violation  of 
the  laws  of  the  state  of  Iowa  may  by  its  authorities  be  in- 
voked and  defendants  placed  in  jeopardy  if  they  accept  ship- 
ments of  the  character  referred  to  in  said  bill  of  complaint, 
though  they  will  accept  the  same  if  so  ordered  by  this  Hon- 
orable Court. 

Defendants  state  that  The  Chicago,  Rock  Island  and  Pacific 
Railway  Company  is  a  railway  corporation  ■  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  states  of 
Illinois  and  Iowa  with  its  principal  office  in  the  city  of  Chi- 
cago, State  of  Illinois. 

Wherefore,  the  defendants  pray  this  court  to  make  such 
order  and  decree  in  the  premises  as  the  true  intent  and  mean- 
ing of  the  Act  of  Congress  of  the  United  States  and  the  laws 
of  Iowa  may  require,  and  that  if  the  injunction  prayed  for 
shall  be  issued,  this  court  will  specify  the  conditions  upon 
which  shipments  of  the  character  referred  to  in  the  bill 
should  be  accepted  by  the  defendants.  If  the  court  shall 
find  and  determine  that  said  laws  forbid  the  acceptance  of 
such  consignments  that  the  court  shall  give  judgment  dis- 
missing complainants'  bill,  and  defendants  ask  this  Honorable 
Court  to  grant  such  other  and  further  relief  as  shall  be 
just  and  equitable. 

Jacob  M.  Dickinson, 

H.  U.  MUDGE, 

Receivers. 
Per  H.  U.  MuDGE, 
As  Receivers  of  The  Chicago,  Rock  Island 

and  Pacific  Railway  Company. 
M.  L.  Bell, 

Solicitor  for  defendants. 
[Verification.] 


882  SUITS     IN     EQUITY. 


No.  548. 

Amended  Answer  of  Street  Railway  where  Receiver  is  in 
Charge,  Adopting  Answer  of  Receiver. 

[Caption.] 

Now  comes  Amarillo  Street  Railway  Company  Defend- 
ant, leave  of  the  Court  being  had  and  obtained,  and  files 
this  its  First  Amended  (1)  Original  Answer  herein,  and  says: 

1.  It  admits  all  the  allegations  in  plaintiff's  petition  as 
true,  and  makes  no  defense  to  the  matters  and  things  there- 
in set  forth,  and  agrees  that  the  Receiver  may  continue  in 
the  appointment  heretofore  made  until  duly  discharged  by 
the  Court,  and  that  such  other  action  may  be  taken  by 
the  Court  as  may  be  deemed  necessary  to  preserve  the 
property  of  this  defendant,  and  to  carry  out  the  terms  and 
provisions  of  the  mortgage  securing  the  bonds  of  this  de- 
fendant, and  for  all  other  such  purposes  as  may  be  requisite 
and  necessary  in  the  premises. 

2.  Replying  to  the  petition  of  intervention  of  the  City  of 
Amarillo,  filed  herein  on  September  25,  1916,  and  to  all 
other  pleadings  that  may  hereafter  be  filed  by  said  inter- 
vener, to  which  this  answer  would  apply,  this  defendant 
adopts  the  answer  of  Guy  W.  Faller,  Receiver,  filed  herein 
on  the  27th  day  of  October,  1916,  and  ijiakes  the  allegations, 
statements  and  denials  in  said  answer  the  allegations,  state- 
ments and  denials  of  this  defendant. 

Turner  &  Rollins, 
Attorneys  for  Amarillo  Street  Railway  Company. 

(1)  Equity  Rule  19  covers  the  matter  of  amendments,  placing  it  in 
the  discretion  of  the  court  and  permitting  amendment  at  any  time. 
Amendment  may  under  this  rule  be  made  in  the  appellate  court.  See 
Western  Union  Telegraph  Co.  v.  Atlanta  &  W.  P.  Ry.  Co.,  238  Fed. 
36,  where  on  appeal  from  a  decree  dismissing  the  bill  the  appellate 
court  modified  the  decree  by  an  order  permitting  plaintiff  to  amend 
within  a  time  stated,  the  dismissal  to  be  conditioned  upon  the  failure 
to  amend. 


COMMON     FORMS    USED    IX     FRAMING     ANSWERS.  883 

Also,  Whitaker  v.  Whitaker  Iron  Co.,  238  Fed.  980,  where  the  court 
says,  at  page  991,  that  it  would  not  dismiss  a  bill  on  the  sole  ground 
that  an  amendment  thereto  is  in  a  matter  known  to  plaintiffs  at  the 
time  of  the  filing  of  the  bill,  inasmuch  as  by  Rule  19  the  subject  of 
amendment  is  placed  entirely  in  the  court's  discretion. 


No.  549. 

Answer  of  Defendants  and  Interveners. 

[Caption.] 

Come  now  the  following  named  defendants  and  inter- 
venors,  the  same  being  all  of  the  parties  hereto  who  oppose 
the  attempted  cancellation  of  the  enrollment  and  allotment 
of  Barney  Thlocco,  deceased,  to-wit :  [here  folloiu  names] 
and  for  their  answer  to  the  amended  bill  of  the  United 
States,   say : 

I.  That  said  bill  of  complaint  does  not  state  facts  suffi- 
cient to  sustain  a  cause  of  action  on  behalf  of  complainant 
or  to  entitle  complainant  to  the  relief  prayed  for  in  said 
bill  of  complaint. 

II.  That  these  defendants  and  intervenors,  hereinafter 
styled  defendants,  admit  that  they  claim  the  land  involved 
in  this  action,  to-wit: 

The  northwest  quarter  of  section  nine  (9),  township 
eighteen  (18)  north,  range  seven  (7)  east, 
as  heirs  of  Barney  Thlocco,  deceased,  or  as  assignees  of  said 
heirs,  and  aver  that  the  respective  interests  of  these  defend- 
ants as  such  heirs  or  assignees  and  as  to  their  rights  between 
themselves  are  not  pleaded  in  this  answer,  but  the  same 
are  reserved  as  between  themselves  and  will  be  determined 
upon  further  pleadings  to  be  filed  by  them  when  the  claim 
asserted  by  the  United  States  is  disposed  of. 

III.  That  these  defendants  admit  that  for  a  long  period 
of  time  last  past,  that  portion  of  the  territory  belonging  to 
the  United  States,  known  and  designated  as  Indian  Territory, 
and  now  forming  a  part  of  the  state  of  Oklahoma,  and  with- 
in  the   eastern   judicial    district   thereof,    has   been    occupied 


884  SUITS     IN     EQUITY. 

by  the  Choctaw,  Chickasaw,  Cherokee,  Creek  and  Seminole 
tribes,  or  nations  of  Indians;  that  .the  land  described  in  the 
bill  of  complaint  herein  is  in  that  portion  of  said  territory 
formerly  occupied  by  the  Creek  nation. 

IV.  That  these  defendants  admit  that  the  complainant, 
under  and  by  virtue  of  the  Act  of  Congress  passed  and 
approved  on  June  28,  1898,  and  by  virtue  of  other  Acts  of 
Congress  supplemental  thereto  and  amendatory  thereto,  and 
particularly  the  Acts  of  Congress  passed  and  approved 
March  1,  1901,  and  June  30,  1902,  assumed  and  undertook 
the  duty  of  allotting,  in  severalty,  to  the  various  members 
and  freedmen,  and  enrolled  citizens  and  freedmen  of  the 
Creek  tribe  or  nation  of  Indians,  the  lands  belonging  to  said 
tribe  or  nation  of  Indians;  and  these  defendants  say  that 
they  are  without  knowledge  as  to  whether  the  work  of 
allotting  the  lands  of  the  Creek  nation  is  still  in  progress 
or  whether  the  same  is  incomplete.  That  these  defendants 
are  Vv^ithout  knowledge  as  to  whether  the  complainant  brings 
and  prosecutes  this  action  in  its  own  behalf  or  in  behalf  of 
the  Creek  nation  of  Indians,  by  virtue  of  its  rights  and  duty 
as  a  sovereign  power  of  said  tribe  of  Indians,  and  for  the 
purpose  of  discharging  its  full  duty  to  said  tribe  of  Indians, 
and  for  the  purpose  of  executing,  discharging  and  carrying 
out  its  duty  in  relation  to  the  allotment  in  severalty  in  the 
lands  of  said  tribes  of  Indians  to  the  duly  enrolled  members 
thereof  according  to  the  true  intent  of  said  trust ;  but  these 
defendants  admit  that  the  complainant  occupies  some  sort 
of  a  trust  relation  or  guardianship  concerning  the  unallotted 
lands  of  the  five  civilized  tribes  of  Indians,  but  have  no 
knowledge  of  the  exact  duties  of  the  complainant  as  such 
guardian  or  trustee,  or  the  exact  extent  of  complainant's 
rights  and  obligations  as  such. 

V.  These  defendants  admit  that  said  land  was,  on  the 
first  day  of  April,  1899,  a  part  of  the  land  belonging  to  the 
Creek  tribe  or  nation,  of  Indians,  and  was  a  part  of  the 
public  domain  of  the  Creek  tribe  of  Indians,  authorized  to 
be    allotted    to    the    duly    enrolled    members    and    freedmen 


COMMON     FORMS     USED    IN     FRAMING     ANSWERS.  885 

citizens  of  said  tribe  of  Indians,  and  under  and  by  virtue 
of,  and  in  accordance  with  the  terms  and  provisions  of  the 
Act  of  Congress  passed  and  approved  March  1,  1901,  and 
June  30,  1902;  but  these  defendants  deny  that  said  land 
is  now  a  part  of  the  land  belonging  to  the  Creek  tribe,  or 
nation,  of  Indians,  and  deny  that  it  is  now  a  part  of  the 
public  domain  of  the  Creek  nation,  or  tribe  of  Indians. 

VI.  That  these  defendants  admit  that  the  commission  to 
the  five  civilized  tribes,  acting  under  the  supervision  of 
the  Secretary  of  the  Interior,  was  charged  with  the  duty 
of  determining  who  were  entitled  under  the  laws  of  the 
United  States  to  be  enrolled  as  citizens  of  the  Creek  nation 
and  that  said  commission  was  charged  with  the  duty  of 
surveying  and  allotting  to  the  lawfully  enrolled  citizens  of 
the  Creek  nation  their  respective  and  due  portions  of  the 
allottable  land  of  said  nation. 

VII.  These  defendants  admit  that  one  Barney  Thlocco 
was,  in  his  lifetime,  a  Creek  Indian,  by  blood,  and  deny 
that  he  died  prior  to  April  1,  1899,  and  deny  that  Barney 
Thlocco  was  not  entitled  to  be  enrolled  as  a  citizen  of 
the  Creek  nation,  or  to  receive  in  allotment  any  part  of 
its  lands  as  was  set  up  in  the  bill  of  complaint ;  and  these 
defendants  admit  that  on  or  about  the  year  1901,  the  com- 
mission to  the  five  civilized  tribes  caused  the  name  of 
Barney  Thlocco  to  be  placed  on  the  rolls  of  the  Creek 
citizens,  by  blood,  which  said  commmission  was  then  pre- 
paring under  the  aforesaid  acts  of  Congress,  but  say  that 
they  have  no  information  as  to  whether  the  enrollment  took 
place  on  the  24th  day  of  May,  as  alleged  in  said  petition. 

These  defendants  further  say  that  in  so  causing  the  name 
of  Barney  Thlocco  to  be  placed  on  the  roll  of  citizens  by 
blood  of  the  Creek  nation  that  said  commission  did  not  make 
a  gross  mistake  of  fact  and  of  law,  and  did  not  act  without 
evidence,  and  did  not  act  arbitrarily,  but  that  said  commis- 
sion acted  in  accordance  with  law  and  upon  the  evidence 
which  was  before  them  at  the  time,  and  upon  which  they 
had  a  right  to  act.     And  these  defendants  say  that  on  the 


886  SUITS     IN     EQUITY. 

first  day  of  April,  1899,  the  said  Barney  Thlocco  was  a 
Creek  Indian  by  blood,  and  was  entitled  under  the  acts 
of  Congress  in  this  behalf  to  be  duly  enrolled  upon  the 
Creek  roll  of  Indians,  and  was  so  enrolled  by  said  com- 
mission created  by  act  of  Congress  in  the  discharge  of 
their  duties,  and  acting  upon  evidence  satisfactory  to  them, 
and  sufficient  in  law,  and  in  fact,  to  authorize  said  com- 
mission in  placing  the  name  of  said  Barney  Thlocco  on  said 
rolls. 

These  defendants  further  say  that  they  have  no  knowledge 
or  information  as  to  what  notice,  if  any,  was  given  by 
said  commission  to  the  Creek  nation  or  its  officers  as  to  the 
proposed  enrollment  of  Barney  Thlocco,  and  in  this  con- 
nection they  allege  that  under  the  rules  and  regulations  of 
said  commission,  which  were  approved  by  the  Secretary 
of  the  Interior,  no  notice  was  required  to  be  given  to  said 
Creek  nation  or  any  of  its  officers  of  the  intended  enrollment 
of  any  Creek  citizen  or  of  any  proposed  action  of  said 
commission  with  reference  to  such  Creek  citizen,  and  they 
further  allege  that  the  said  Barney  Thlocco  was  enrolled 
and  allotted  in  like  manner  as  all  other  Creek  citizens, 
regularly  and  in  accord  with  the  approved  practice  of  said 
commission. 

VIII.  Further  answering,  these  defendants  say  that  they 
admit  that  on  the  30th  day  of  June,  1902,  the  said  com- 
mission to  the  five  civilized  tribes  allotted  in  the  name  of 
the  said  Barney  Thlocco  the  land  described  in  the  petition, 
and  issued  a  certificate  of  allotment  therefor  in  the  name 
of  said  Barney  Thlocco;  and  these  defendants  further  admit 
that  the  copy  of  said  allotment  certificate  attached  to  said 
petition  is  a  true  and  correct  copy  thereof;  but  these  defend- 
ants say  that  it  is  not  true  that  said  allotment  certificate 
was  issued  upon  the  arbitrary  assumption  that  Barney 
Thlocco  was  a  living  person  on  April  1,  1899,  and  allege, 
as  a  matter  of  fact,  the  said  Barney  Thlocco  was  a  living 
person  on  said  date,  and  a  Creek  Indian  by  blood,  and 
entitled  to  be  placed  on  said  rolls  and  to  an  allotment;  and 


COMMON     FORMS    USED    IN     FRAMING    ANSWERS.  887 

in  this  connection  these  defendants  further  allege  that  though 
it  is  true  that  said  Barney  Thlocco  had  died  prior  to  the 
selection  and  allotment  of  said  land,  which  was  made  on 
the  30th  day  of  June,  1902,  it  was  in  accord  with  the  usage, 
practice  and  custom  of  the  commission  to  the  five  civilized 
tribes  to  so  issue  said  allotment  certificate  in  the  name  of 
the  allottee  for  the  use  and  benefit  of  the  heirs,  and  that  the 
said  selection  and  allotment  inured  to  the  benefit  of  the  heirs 
in  like  manner  as  if  the  allotment  certificate  had  been  issued 
in  the  name  of  the  heirs. 

IX.  These  defendants  admit  the  execution  and  approval 
of  the  patents  conveying  said  allotment,  as  alleged  in  the 
bill  of  complaint,  and  admit  that  said  patents  were  not  de- 
livered to  Barney  Thlocco,  but  in  this  connection  they  aver 
that  immediately  after  the  issuance  of  said  patents  they  were 
duly  and  lawfully  recorded  by  the  commission  to  the  five 
civilized  tribes  in  the  books  of  record  provided  by  law  for 
such  purpose,  and  that  said  record  operated  as  a  delivery 
of  the   patents. 

X.  That  these  defendants  deny  that  any  knowledge  ever 
came  to  said  commission  as  to  a  mistake  of  fact  made  by 
said  commission  in  causing  the  name  of  said  Barney  Thlocco 
to  be  enrolled  and  in  allotting  him  the  land  above  described, 
and  they  further  aver  that  no  mistake  of  fact  was  made 
by  said  commission  in  that  respect. 

XI.  These  defendants  say  that  they  are  without  knowl- 
edge as  to  whether,  on  the  13th  day  of  December.  1906,  the 
Secretary  of  the  Interior  by  his  order  caused  the  name  of 
Barney  Thlocco  to  be  stricken  from  the  roll  of  Creek 
citizens,  and  in  this  connection  they  aver  that  if  the  name 
of  the  said  Barney  Thlocco  was  so  stricken  that  it  was 
illegally  done,  without  due  process  of  law,  and  without 
notice  to  any  of  the  heirs  of  said  Barney  Thlocco,  and 
without  notice  to  any  person  who  was  entitled  to  notice,  and 
said  act   was  void.  . 


888  SUITS     IN     EQUITY. 

XII.  That  the  commission  to  the  five  civilized  tribes  was, 
by  various  acts  of  Congress  and  treaties  with  the  Creek 
nation,  vested  with  full  and  complete  power,  authority  and 
jurisdiction  to  enroll  Creek  citizens  and  to  allot  the  lands 
of  said  nation  to  the  enrolled  members  of  the  tribe,  and 
the  acts  of  said  commission  in  enrolling  said  Barney  Thlocco 
and  in  allotting  said  land  in  his  name  for  the  benefit  of 
his  heirs,  were  judicial  in  their  nature  and  that  the  said 
commission  to  the  five  civilized  tribes  having,  as  herein- 
before set  forth,  enrolled  said  Barney  Thlocco,  and  having 
made  said  allotment  in  the  usual  and  ordinary  course  of  the 
authorized  work  of  said  commission  and  upon  such  hearing 
and  evidence  as  the  commission  deemed  satisfactory,  and 
the  work  of  said  commission  having  been  approved  by  the 
Secretary  of  the  Interior,  said  enrollment,  allotment  and 
patent  can  not  be  cancelled,  nor  can  the  issue  of  fact  upon 
which  the  commission  placed  the  name  of  said  Barney 
Thlocco  upon  the  approved  Creek  roll  be  tried  again,  and 
these  defendants  say  that  this  court  is  without  authority 
of  law  or  jurisdiction  to  reopen  or  retry  the  question  of 
fact  sought  to  be  put  in  issue  by  the  United  States.  They 
further  allege  that  by  act  of  Congress  said  final  rolls  of 
the  Creek  nation  approved  by  the  Secretary  of  the  Interior 
have  been  made  final  and  conclusive  and  not  subject  to  attack. 

XIII.  And  defendants  further  say  that  complainant  ought 
not  to  have  and  recover  herein  because  defendants  aver  and 
say,  that  the  different  causes  of  action  upon  which  complain- 
ant predicates  its  bill  are  barred  by  the  Federal  statute  of 
limitation  of  six  years,  being  the  26th  Statutes  at  Large, 
Section  8,   1099. 

XIV.  And  defendants  further  say  that  the  patent  of 
Barney  Thlocco  was  issued  on  the  11th  day  of  March, 
1903,  and  recorded  in  the  office  of  the  commission  to  the 
five  civilized  tribes  on  the  —  day  of  — ,  1903,  more  than 
thirteen  years  ago.  That  the  complainant  with  full  knowl- 
edge of  all  the  facts,  did  not  commence  any  proceeding  to 
set   aside,   vacate   or  annul   said   patent   until    the   institution 


COMMON    FORMS    USED    IN     FRAMING    ANSWERS.  889 

of  this  suit,  and  defendants  therefore  say  that  complainant 
has  been  guilty  of  laches  and  that  its  failure  to  prosecute 
a  suit  to  set  aside  and  annul  said  patent  has  been  such 
laches  as  ought  to  and  does  bar  this  action  in  a  court  of 
equity. 

Wherefore,  these  defendants  pray  that  the  complainant's 
amended  bill  of  complaint  be  dismissed  and  that  they  may 
recover  judgment,  for  their  costs  herein  and  all  other 
proper  relief. 

A.  B.  and  X.  Y., 


[Verification.] 


Attorneys. 


No.  550. 

Supplemental  Answer.  (1) 
[Caption.] 

Come  now  the  defendants,  W.  T.  Carter  and  Brother,  a 
co-partnership,  trading  under  that  name,  and  composed  of 
W.  T.  Carter,  and  E.  A.  Carter,  resident  citizens  of  Polk 
County,  Texas,  and  Jack  Thomas,  a  resident  citizen  of  Hayes 
County.  Texas,  and  said  W.  T.  Carter,  E.  A.  Carter  and 
Jack  Thomas,  individually,  and  answering  the  bill  of  com- 
plaint filed  herein  on  the  25th  day  of  January,  1913,  under 
leave  of  this  court,  file  this  their  first  supplemental  answer, 
in  addition  to  and  in  supplement  of  their  second  amended 
original  answer  filed  herein  on  the  13th  day  of  April,  1916, 
and  pray  that  this  supplemental  answer  be  considered  in 
connection  with  said  second  amended  original  answer,  and 
not  as  superseding  any  allegation  of  law  or  fact  made 
therein,  or  any  other  matters  set  out  in  said  pleading,  or 
any  relief  prayed  for  therein,  all  of  the  matters  and  things 
alleged  in  said  second  amended  original  answer  being  here 
and   now   adopted   as   if  set   out   herein   in   haec  verba: 

I.  These  defendants  here  and  now  allege  that  since  the 
filing  of  this  suit,  and  since  the  filing  of  their  said  second 
amended    original    answer    herein,    these    defendants    have 


890  SUITS     IN     EQUITY. 

acquired,  by  a  general  warranty  deed,  said  deed  being  dated 
the  20th  day  of -May,  A.  D.,  1916,  and  duly  recorded  in 
the  deed  records  of  Polk  County,  Texas,  in  Volume  54  at 
page  363,  all  of  the  interest  in  the  land  sought  to  be 
partitioned  herein  that  was  at  said  time  owned  by  the 
defendant,  J.  E.  Bruce,  said  interest  being  more  particularly 
described  as  follows :     [description  omitted] 

These  defendants  here  and  now  specially  adopt  all  alle- 
gations of  law  and  fact  made  in  the  second  amended  original 
answer  hereinabove  referred  to ;  also  all  defenses  set  out 
therein,  and  all  prayers  for  relief  made  therein,  and  further 
pray  that  if  it  should  be  decreed  that  their  interest  in  the 
Jno.  D.  Nash  survey  is  subject  to  partition  in  this  suit, 
that  the  interest  therein  conveyed  to  them  by  the  instruments 
hereinabove  referred  to  in  this  pleading,  be  respected  in 
addition  to  all  the  other  interests  in  said  land  so  owned  by 
these  defendants,  as  set  out  in  their  second  amended  original 
answer  filed  herein. 

And  for  such  other  and  further  relief,  as  these  defendants 
may  show  themselves  entitled  to  receive,  In  equity  and  good 
conscience,  they,  as  in  duty  bound,  will  ever  pray. 

A.    B.    and   C.    D., 

Solicitors. 

(1)  See  Equity  Rule  19. 

No.  551. 

Second  Amended  Answer. 
[Caption.'] 

In  the  above  styled  and  numbered  cause  comes  now  the 
defendant,  Ray  Wilson,  a  resident  and  citizen  of  Polk 
County,  Texas,  and  having  obtained  leave  of  the  court  in 
this  behalf,(l)  files  this  his  second  amended  answer  in  this 
cause,  and  answering  the  bill  of  complaint  herein  exhibited 
against  him,   says : 

I.  This  defendant  here  and  now  adopts  as  part  of  his 
answer  in  this  behalf  the  answer  filed   in  this   case  by  the 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  891 

solicitors  of  the  defendants,  W,  T.  Carter  and  Brother,  and 
W.  T.  Carter  and  E.  A.  Carter  and  Jack  -Thomas,  as  indi- 
viduals, insofar  as  the  allegations  in  the  second  amended 
original  answer  of  the  defendants  above  named  are  appli- 
cable to  the  defense  of  this  defendant. 

II.  Defendant  further  adopts  as  if  set  out  herein  in 
haec  verba,  the  allegations  made  in  paragraph  la  of  the 
second  amended  original  answer  of  the  defendants  above 
named,  and  moves  that  this  suit  be  dismissed  for  the  reasons 
therein   stated. 

III.  Replying  to  the  allegation  made  in  Section  6  of  the 
bill  of  complaint  filed  herein,  which  allegation  is  as  follows : 

"The  defendants  are  denying  and  repudiating  the  right 
of  complainant  to  have  a  partition  of  said  land  and  refuse 
amicably  to  partition  the  same,  and  this  action  on  the  part 
of  the  defendants  renders  it  impossible  for  the  complainant 
to  avail  itself  of  its  portion  of  said  land,  or  to  use,  enjoy 
and  appropriate  the  same,  thereby  necessitating  this  suit  to 
effect  a  partition  at  the  hands  of  the  court  according  to 
equity  and  good  conscience," 

defendant,  Ray  Wilson,  alleges  the  fact  to  be  that  as  shown 
by  plaintiff's  bill,  he  was  not  a  party  to  cause  No.  4055 
in  the  district  court  of  Polk  County,  styled  Annie  T. 
Lomax  v.  Wm.  Carlisle  and  Company  et  al.,  and  was  not 
a  party  to  the  judgment  rendered  by  the  district  court  of 
Polk  County  in  said  cause  on  December  4,  1911,  and  that 
nothing  in  said  judgment  applies  to  or  affects  this  de- 
fendant or  this  defendant's  interest  in  said  John  D.  Nash 
survey;  wherefore  this  defendant  says  that  the  court  should 
not  take  jurisdiction  of  this  case  insofar  as  he  is  con- 
cerned, because  he  is  not  a  proper  or  necessary  party  to 
this  suit,  and  the  said  Ray  Wilson  here  and  now  prays 
that  as  to  him  this  suit  be  in  all  things  dismissed. 

IV.  If  mistaken  in  the  foregoing  contentions,  and  if  it 
be  held  that  this  defendant  is  a  proper  and  necessary  party 


892  SUITS     IN     EQUITY. 

to  this  suit,  and  that  he  must  submit  his  interest  in  the 
lands  in  controversy  to  the  jurisdiction  of  this  court  for 
partition,    defendant   says :     [allegations   omitted] 

VI.  If  mistaken  in  the  foregoing  allegations,  and  if  it 
be  held  that  this  defendant  must  tender  his  interest  in  said 
lands  as  above  set  out  for  partition,  defendant  prays  that 
upon  partition  there  be  set  aside  and  decreed  to  him,  free 
of  all  claims  of  all  parties  to  this  suit,  and  in  severalty, 
the  tracts  of  land  hereinabove  described  by  metes  and 
bounds. 

A.    B.    and   C.    D., 

Solicitors. 

(1)  See 'Equity  Rule  19. 


No.  552. 

Allegations  in  Answer  of  Denial  of  Jurisdiction  in  Federal 
Court,  no  Federal  Question,  and  not  Requisite  Jurisdic- 
tional Amount. 

They  deny  that  the  matters  in  controversy  in  this 
suit  are  proper  questions  arising  under  the  Constitution 
and  laws  of  the  United  States,  but  show,  on  the  contrary, 
that  no  proper  Federal  question  arises  under  the  bill.  They 
also  deny  that  the  sum  in  controversy  exceeds  the  value  of 
$3,000.00,  exclusive  of  interest  and  costs,  but  show  that  the 
action  is  not  one  involving  a  consideration  of  that  kind,  but 
is  only  a  suit  to  prevent  compliance  with  the  orders  of  the 
Mississippi    Railroad    Commission. 


No.  553. 

Denial  of  Jurisdiction  of  Federal  Court  to  Enjoin  State 
Railway  Commission.(l) 

The  defendants  show  that  they  have  not  prepared  to 
bring  any  suit  in  reference  to  the  matter  and  that  such 
action  had  not  become  necessary  prior  to  the  injunction 
sued  out  herein;  that  the  suit  now  pending  in  the  supreme 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  893 

court  of  Mississippi  wherein  the  attorney  general  is  appel- 
lant and  the  Mobile  &  Ohio  Railroad  Company  appellee 
hereinbefore  referred  to,  will  decide  the  principles  involved 
in  this  suit  and  will  involve  a  construction  of  the  laws  of 
Mississippi  bearing  on  most  of*  the  questions  at  issue  in 
this  suit,  but  they  admit  that  if  the  state  supreme  court 
decides  said  suit  favorably  to  the  attorney  general  that 
it  is  and  was  the  purpose  of  the  attorney  general  to  pro- 
ceed with  said  suit  to  compel  the  complainant  to  discharge 
its  duty  to  the  public  and  that  he  will  adopt  whatever  legal 
procedure  is  deemed  appropriate  in  case  he  is  not  enjoined 
from  so  doing. 

In  respect  to  the  said  suit,  he  shows  that  this  court  cannot 
enjoin  his  action  therein,  because  it  is  a  suit  by  the  state 
in  its  sovereign  capacity  against  the  complainant  in  this 
suit,  and  that  the  Federal  courts  have  no  authority  or  power 
to  enjoin  him  with  reference  thereto. 

(1)  See  Judicial  Code,  Sec.  266. 


No.  554. 

Prayer  that  Answer  be  made  a  Cross-Bill.  (1) 

Now,  having  answered  the  material  allegations  of  the  bill, 
defendants  pray  that  their  answer  be  made  a  cross-bill  and 
that  the  court  will  grant  an  order  directing  the  Mobile  & 
Ohio  Railroad  Company  and  Southern  Railway  Company, 
which  operates  and  controls  it  in  its  own  interest,  to  submit 
to  the  defendants  or  their  authorized  agents  and  accountants 
for  examination,  all  books,  accounts,  letters,  records  and 
papers  bearing  on  the  business  and  operation  of  the  Mobile 
&  Ohio  Railroad  Company  and  of  the  Southern  Railway 
Company  and  of  the  relations  of  one  party  to  the  other 
party,  to  the  end  that  the  truth  may  be  known  and  justice 
done  between  the  public  and  the  complainant,  and  that  on 
final  hearing,  that  the  court  will  enter  an  order  sustaining 
the  orders   of  the   Railroad   Commission   and   directing  the 


894  SUITS    IN    EQUITY. 

complainant  to  comply  with  the  said  orders  either  in  whole 
or  in  part,  as  the  facts  proven  after  full  hearing  may  show 
to  be  just  and  lawful,  and  if  mistaken  in  the  relief  prayed, 
that  the  court  will  grant  to  the  cross-complainants  such  other 
and  further  relief,  both  general  and  special,  as  the  facts 
stated  may  warrant,  and  as  in  duty  bound,  the  cross-com- 
plainants will  ever  pray,   etc. 

Ross  A.  Collins, 
Attorney  General. 
By  Geo.  H.  Ethridge, 
Assistant  Attorney  General. 
(1)  See  Equity  Rule  30. 


No.  555. 

Answer  to  Amendment  to  Bill  Filed  after  Answer  to  Original 
Bill,  under  Consent  of  Defendants. 

[Caption.] 

I,  Walter  E.  Masland,  one  of  the  defendants  in  the 
above  case,  for  answer  to  the  amendment  to  the  bill  of 
complaint  filed  therein,  say: 

In  addition  to  the  answer  set  forth  by  me  in  the  fourth 
paragraph  of  my  original  answer  in  this  case,  I  deny  that 
any  action  of  mine  will  be  to  the  great  and  irreparable 
damage  or  injury,  or  of  any  damage  or  injury  to  the 
said  plaintijffs,  and  I  aver  and  state,  as  I  have  heretofore 
done,  that  the  said  plaintiffs  have  a  full,  adequate  and 
complete  remedy  at  law. 

G.  Q.  H., 
Solicitor    for    Defendant. 


No.  556. 

Answer  to  Interplea. 
[Caption.] 

Now  comes  plaintiff  and  by  consent  of  court  first  obtained, 
files   herewith    his    answer    to    the    interplea(l)    filed    in   the 


COMMON    FORMS    USED    IX     FRAMING    ANSWERS.  895 

above  entitled  cause,  by  the  Commercial  Bank,  a  corporation 
of    New    Madrid,    Missouri. 

Plaintiff  admits  that  the  Commercial  Bank,  the  inter- 
pleader, is  a  corporation  duly  organized  and  existing,  and 
doing  business,  at  New  Madrid,  Missouri,  under  and  by 
virtue  of  the  laws  of  the  state  of  Missouri. 

Plaintiff  in  answer  to  the  first  count  of  said  interplea 
denies  each  and  every  allegation  contained  therein.  And  the 
plaintiff  especially  denies  that  the  interpleader  is  now  or 
was  at  the  times  mentioned  by  plaintiff's  petition  or  in 
interpleader's  petition,  the  owner  of  a  certain  promissory 
note  in  the  principal  sum  of  ten  thousand  ($10,000.00) 
dollars,  executed  by  Murray  Phillips,  Jr.,  and  Annie  M. 
Phillips;  and  the  plaintiff  further  denies  that  plaintiff's  as- 
signor, the  State  National  Bank  of  Little  Rock,  Arkansas, 
entered  into  the  agreement  with  the  interpleader  alleged  in 
said  interpleader's  petition. 

Plaintiff  for  his  answer  to  the  allegations  contained  in  the 
second  count  of  said  interpleader's  petition,  denies  that  said 
note  executed  by  the  said  IMurray  Phillips,  Jr.,  and  Annie 
M.  Phillips,  is  now  or  was  at  any  of  the  times  therein  men- 
tioned the  property  of  the  said  interpleader;  and  further 
denies  that  the  said  note  was  delivered  to  the  said  State  Na- 
tional Bank  of  Little  Rock,  Arkansas,  without  consideration. 
Plaintiff  further  denies  that  the  interpleader  is  now  or  was 
at  any  [of]  the  times  therein  mentioned  the  owner  of,  or 
entitled  to  the  possession  or  proceeds  of  the  said  note 
executed  by  the  said  Murray  Phillips,  Jr.,  and  Annie  M. 
Phillips. 

The  plaintiff  further  answering  said  interpleader's  peti- 
tion respectfully  shows  to  the  court  that  on  or  about  the 
22nd  day  of  September,  1913,  plaintiff's  assignor,  the  State 
National  Bank  of  Little  Rock,  Arkansas,  purchased  the  said 
note  of  the  said  Murray  Phillips,  Jr.,  and  Annie  M.  Phillips, 
from  said  Commercial  Bank,  the  interpleader  herein,  for  a 
valuable  consideration  and  that  plaintiff  is  now  and  was  at 
all    the    times    mentioned    in    plaintiff's    petition    and    in    the 


896  SUITS     IN     EQUITY. 

interpleader's    petition    the    true    and    lawful    holder    thereof 
and  entitled  to  the  proceeds  of  said  note. 

Plaintiff  further  shows  to  the  court  that  plaintiff's  as- 
signor was  at  all  times  herein  mentioned,  a  corporation  duly 
organized  and  doing  business  under  the  laws  of  the  United 
States  relative  to  national  banking  associations,  and  that 
the  interpleader  was  at  all  times  herein  mentioned  a  cor- 
poration duly  organized  and  doing  business  under  the  laws 
of  the  state  of  Missouri  relative  to  banks  and  trust  com- 
panies. 

Plaintiff  respectfully  shows  to  the  court  that  the  contract 
and  agreement  alleged  in  said  interpleader's  petition  is  by 
its  terms  wholly  ultra  vires,  of  the  powers  conferred  upon 
either  the  plaintiff  or  interpleader,  and  plaintiff  still  deny- 
ing that  such  a  contract  was  entered  into  by  and  between 
plaintiff's  assignor  and  the  interpleader  respectfully  shows 
to  the  court  that  the  execution  of  such  a  contract,  either  by 
the  parties  voluntarily,  or  by  the  order  of  this  honorable 
court,  would  constitute  a  fraud  upon  the  public  and  would  be 
in  every  way  contrary  to  public  policy. 

Wherefore,  plaintiff  having  fully  answered  the  said  in- 
terpleader's petition,  plaintiff  respectfully  prays  the  court 
that  it  be  adjudged  the  owner  of  said  note  of  Murray  Phil- 
lips, Jr.,  and  Annie  M.  Phillips,  and  that  this  honorable 
court  order  the  proceeds  thereof,  which  have  heretofore 
been  ordered  paid  into  this  court,  be  now  ordered  paid  over 
to  this  plaintiff,  and  for  such  other  and  further  equitable 
relief  as  to  the  court  shall  seem  meet  and  proper  in  the 
premises. 

Chas.  Claflin  Allen  & 
Geo.  Breaker, 

Attorneys  for  Plaintiff. 

(1)  Foster's  Fed.  Prac,  5th  ed..  Sec.  157;  Whitehouse,  Equity  Practice, 
Sees.  125.  126,  127. 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  897 

No.  557. 

Joint  Answer  of  City,  City  Treasurer,  and  Holder  of 
Certificates  of  Indebtedness. 

[Caption.] 

Come  now  the  defendants  in  the  above  entitled  action  by 
their  attorneys,  Daniel  W.  Hoan  and  Clifton  Williams,  and 
by  way  of  answer  to  the  cause  of  action  set  forth  in  the 
plaintiff's  complaint,  make  the  following  allegations,  ad- 
missions and  denials: 

I.  The  defendants  admit  the  names,  citizenship  and  resi- 
dence of  the  parties  as  alleged  in  the  complaint. 

II.  The  defendants  admit  that  a  tax  has  been  levied  against 
the  property  mentioned,  and  for  the  purposes  mentioned,  in 
the  complaint,  in  the  amount  of  upwards  of  eight  thousand 
dollars,  by  the  defendant  city,  but  deny  that  the  said  tax  is 
a  pretended  tax  or  void,  and  in  that  connection  allege 
that  the  same  is  a  valid  tax,  and  in  accordance  with  law. 
The  defendants  admit  that  the  city  of  Milwaukee  would 
have  sold  the  said  property  for  the  said  tax  if  it  had  not 
been  enjoined  therefrom.  The  defendants  further  admit  that 
the  defendant  Donahue  is  the  owner  and  holder  of  the  certifi- 
cates mentioned  in  the  complaint,  as  alleged  in  paragraph 
2    thereof. 

III.  The  defendants  allege  that  they  are  without  knowl- 
edge as  to  the  ownership  of  the  plaintiff  in  the  property 
described  in  paragraph  3  of  the  complaint,  and  are  without 
knowledge  aS  to  the  exact  frontage  thereof,  but  admit  that 
the  said  lots  front  upon  Erie  Street,  and  that  the  city  of 
Milwaukee  is  a  city  of  the  first  class,  as  alleged  in  said 
third  paragraph. 

IV.  The  defendants  admit  the  allegations  as  to  the 
established  grade  of  said  street  in  1873  in  the  4th  paragraph 
of  the  complaint  and  admit  that  the  said  street  was  graded 
and  graveled,  as  alleged  in  said  4th  paragraph,  in  1873,  and 
in  that  connection  allege  that  the  said  graveling  of  the  said 
street  was  nothing  more  nor  less   than  the  leveling  of  the 


898  SUITS    IN     EQUITY. 

said  street  for  traffic  thereover,  and  the  placing  thereupon 
of  a  thin  surface  of  sand  and  gravel,  and  was  not  a  pave- 
ment of  the  said  street  within  the  provisions  of  Chapter 
185  of  the  Laws  of  1911,  which  is  quoted  in  paragraph  6  of 
the  said  complaint. 

V.  The  defendants  admit  the  allegations  of  section  2 
of  the  charter,  as  contained  in  the  5th  paragraph  of  the 
complaint,  and  allege  that  the  proviso  therein,  being  the  last 
part  thereof,  applies  to  the  case  at  bar. 

VI.  The  defendants  admit  the  allegations  as  to  the  con- 
tents of  the  Chapter  185  of  the  Laws  of  1911,  as  contained 
in  the  6th  paragraph  of  the  complaint. 

VII.  The  defendants  admit  the  allegations  as  to  the 
contents  of  the  charter  provisions  alleged  in  the  7th  para- 
graph of  the  complaint. 

VIII.  The  defendants  admit  the  passage  of  a  resolution 
on  or  about  the  24th  day  of  June,  1912,  as  alleged  in  the 
8th  paragraph  of  the  complaint,  but  deny  that  the  said 
copy  contained  in  the  said  complaint  is  a  correct  copy 
thereof.  The  defendants  also  admit  that  the  commissioner 
of  public  works  made  a  communication,  as  alleged  in  the 
last  part  of  the  said  paragraph  8  of  the  complaint,  and 
further  admit  the  allegations  of  the  said  paragraph  as  to 
the  estimate  of  cost  of  the  work. 

IX.  The  defendants  deny  that  the  commissioner  of  public 
works  failed  to  make  an  assessment  of  benefits  and  dam- 
ages, as  alleged  in  the  9th  paragraph  of  the  complaint,  and 
the  defendants  deny  that  the  assessment  was  made  by  a 
clerk  in  the  office  of  the  commissioner  of  public  works ; 
deny  that  the  commissioner  of  public  works  or  the  person 
who  made  said  assessment  failed  to  consider  the  amount 
proposed  to  be  made  chargeable  against  the  several  lots 
described  in  the  complaint,  and  the  benefits  which,  in  his 
opinion,  would  actually  accrue  to  the  owner  of  the  same 
and  the  consequence  of  such  proposed  accrual,  and  the  de- 
fendants deny  that  the  commissioner  did  not  assess  against 
the  several  lots  mentioned   in  the  complaint  the   amount  of 


CDMMON    FORMS    USED    IN     FRAMING    ANSWERS.  899 

benefits  which  said  lots  would  severally,  in  the  opinion  of 
the  commissioner,  derive  from  said  improvement  when 
completed  in  the  manner  contemplated,  and  deny  that  the 
commissioner  failed  to  take  into  consideration  in  each  case 
any  injury  which,  in  his  opinion,  might  result  to  each  lot 
from  said  improvement,  and  deny  that  the  said  assessment 
was  arbitrary  or  based  upon  the  estimate  of  costs,  and  the 
defendants  deny  that  the  said  assessment  was  unfair  or  un- 
just or  grossly  excessive,  and  that  the  said  improvement  is 
of  no  benefit  to  the  property  in  question,  and  that  it  has 
in  no  wise  increased  or  enhanced  the  value  thereof. 

The  defendants  admit  that  bids  were  advertised  for  for 
doing  the  work  and  that  contract  was  entered  into  with 
the  defendant  Donahue  at  the  price  mentioned  in  the  com- 
plaint, and  that  the  said  Donahue  was  to  pave  the  street  with 
a  permanent  sandstone  pavement  with  a  concrete  founda- 
tion, as  alleged  in  the  9th  paragraph  of  the  complaint,  and 
the  defendants  further  admit  the  allegations  as  to  the  issu- 
ing of  the  certificates  in  said  9th  paragraph. 

X.  The  defendants  admit  the  allegations  of  the  10th 
paragraph. of  the  complaint,  but  allege  that  the  same  is  im- 
material to  this  cause  of  action,  and  based  upon  the  errone- 
ous theory  of  the  law  applicable  hereto.  Admitting  that  said 
lots  front  on  said  street,  the  defendants  allege  that  they  are 
without  knowledge  as  to  the  exact  width  of  said  lots,  or  the 
extent  of  said  frontage. 

XI.  The  allegations  of  the  11th  paragraph  as  to  the  pay- 
ment of  taxes  are  admitted  by  the  defendants. 

XII.  Wherefore  the  defendants  pray  judgment  that  the 
complaint  of  the  plaintiff  be  dismissed,  with  costs  to  the 
defendants. 

Daniel  Hoan, 
Clifton   Williams. 
Attorneys  for  the  Defendants. 
[  Verification. "l 


900  SUITS    IN     EQUITY. 

No.  558. 

Stipulation(l)  Waiving  Answer  and  Nunc  Pro  Tunc  Agree- 
ment as  to  Filing  the  same. 

[Caption.] 

It  is  stipulated  by  and  between  the  parties  above  named 
and  their  attorneys  of  record  that  the  petition  filed  and  the 
proofs  offered  in  support  thereof  show  the  facts ;  and  formal 
filing  of  answer  or  motion  to  dismiss  on  the  part  of  the  de- 
fendant is  hereby  expressly  waived  by  the  plaintiffs ;  and  it 
is  agreed  that  the  case  be  submitted  to  the  court  upon  the 
petition  and  proofs  and  proceedings  had  at  the  time  of 
submission  of  the  same  for  final  order. 

A.  B., 
Attorney  for  Plaintiffs. 
C.  D.  and  E.  R, 
Attorneys  for  Defendant. 
It  is  hereby  agreed  that  the  above  and  foregoing  stipula- 
tion be  considered  filed  as  of  the  date  of  the  hearing  before 
the  trial  court  and  before  the  submission  to  the  court  of  the 
above  entitled  case.  A.  B., 

Attorney  for  Plaintiffs. 
C.  D.  and  E.  F., 
Attorneys  for  Defendant. 

(1)  Must  be  in  writing  or  made  in  open  court.  Evans  v.  State  Bank, 
19  Fed.  676;  Lee  v.  Simpson,  42  Fed.  434. 


No.  559. 

Averments  in  the  Answer  in  Place  of  Motions.  (1) 
Defendant  denies  that  the  matter  in  dispute,  exclusive  of 
interest  and  costs,  exceeds  the  sum  or  value  of  $3,000.00. 
and  therefore  avers  that  this  court  is  without  jurisdiction 
and  prays  the  same  benefit  and  advantage  of  these  facts 
and  things  as  if  it  had  moved  to  dismiss  the  bill  of  com- 
plaint in  these  regards. 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  901 

Defendant,  further  answering,  avers  that  links  identical 
with  complainant's  are  made  and  sold  by  others  than 
complainant,  purporting  to  be  under  agreement  with  com- 
plainant, and  therefore  the  size,  shape,  material,  ornamenta- 
tion and  general  appearance  could  not  identify  the  goods  as 
those  of  complainant,  and  if  such  an  agreement  or  arrange- 
ment exists,  then  said  others  ought  to  be  joined  as  com- 
plainants, and  defendant  prays  the  same  benefit  and  ad- 
vantage of  these  facts  and  things  as  if  he  had  moved  to 
dismiss  the  bill  of  complaint  in  these  regards. 

Defendant,  further  answering,  says  that  H.  B.  Pratt 
referred  to  in  the  bill  of  complaint  is  alleged  to  have  such 
an  interest  as  to  require  his  being  joined  as  complainant, 
and  defendant  prays  the  same  benefit  and  advantage  of 
these  facts  and  things  as  if  he  had  moved  to  dismiss  the  bill 
of  complaint  in  these  regards.. 

(1)   Equity  Rule  29. 


No.  5G0. 

Amendment  to  Answer  as  Amended.  (1) 

[Caption.] 

Now  comes  J.  M.  Fisher  Company,  defendant  herein, 
and  by  leave  of  court  first  had  and  obtained,  amends  his 
answer  as   follows : 

By  adding  immediately  after  paragraph  19  of  the  amended 
answer  the  following: 

XX.  In  answer  to  paragraph  2  of  the  bill  of  complaint 
as  amended,  defendant  denies  that  at  the  time  the  com- 
plainant is  alleged  to  have  begun  to  manufacture  and  sell 
the  links  referred  to  no  links  of  the  same  or  similar  form 
were  being  made  by  others,  and  denies  that  complainant's 
alleged  type  of  links  is,  or  ever  was,  distinctive,  or  had 
never  before  been  made  or  sold  except  by  H.  B.  Pratt  or 
Bullard  Brothers,  or  under  their  authority. 


902  SUITS     IN     EQUITY. 

As  to  the  other  matters  alleged  in  the  second  paragraph 
of  the  bill  of  complaint  as  amended,  defendant  is  not  in- 
formed save  by  the  bill  of  complaint,  and  therefore  denies 
the  same  and  demands  that  the  complainant  make  strict 
proof    thereof. 

XXI.  Defendant,  further  answering,  avers  that  Bullard 
Brothers  Company,  referred  to  in  the  bill  of  complaint  as 
amended,  is  alleged  to  have  such  an  interest  as  to  require 
its  being  joined  as  complainant,  and  the  defendant  prays 
the  same  benefit  and  advantage  of  these  facts  and  things 
as  if  he  had  moved  to  dismiss  the  bill  of  complaint  in  these 
regards.  S.    P.    H., 

Solicitor  for  Defendant. 

I  acknowledge  receipt  of  copy  of  the  foregoing  proposed 
amendment  to  the  answer  and  consent  that  the  ansv/er  may 
be    so    amended. 

E.  E.  H., 
Solicitor    for    Plaintiff, 
(i;   Equity  Rule  19. 


No.  561. 

Defense  of  Prior  Suit  in  State  Court(l)   and  Formation  of 
Corporation  for  Purposes  of  Federal  Suit. 

Defendant  for  a  further  defense  alleges: 

I.  That  on  the  26th  day  of  November,  1915,  the  defendant 
herein  commenced  an  action  in  the  superior  court  of  the 
state  of  California  in  and  for  the  county  of  Fresno,  against 
H.  N.  Coffin,  John  McMillan,  and  F.  H.  Parsons,  as 
trustees,  and  H.  N.  Coffin,  John  McMillan  and  F.  H.  Par- 
sons, and  the  Los  Angeles  Trust  and  Savings  Bank,  a 
corporation,  as  defendants,  which  said  action  is  now  pend- 
ing. 

II.  That  the  said  Los  Angeles  Trust  and  Savings  Bank, 
a  corporation,  one  of  the  defendants  in  said  sait  in  said 
state  court,   is  a  corporation   organized   and   existing  under 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.         903 

the  laws  of  the  state  of  California,  with  its  principal  place 
of  business  at  Los  Angeles,  California,  and  said  corporation 
is  a  citiezn  of  the  state  of  California. 

III.  That  said  cause  of  action  in  said  state  court  involves 
the  construction  of  certain  instrument  in  writing  hereto 
annexed  marked  "Exhibit  A,"  and  made  a  part  hereof,  and 
was  brought  for  the  purpose  of  establishing  said  F.  F. 
Doane's  interest  and  claim  in  said  lands  described  in  plain- 
tiff's said  amended  bill  herein. 

That  the  said  Los  Angeles  Trust  and  Savings  Bank  has 
appeared  in  said  action  on  or  about  the  23rd  day  of  De- 
cember,  1915. 

IV.  That  the  said  H.  N.  Coffin,  John  McMillan  and  F. 
H.  Parsons  and  their  associates  in  interest  knew  of  said 
action  in  said  state  court  aforesaid  immediately  upon  said 
suit  being  filed  in  said  court;  and  on  the  29th  day  of  De- 
cember, 1915,  there  was  filed  by  said  F.  F.  Doane  a  lis 
pendens  in  said  action  with  the  county  recorder  of  Fresno 
County,  California,  a  copy  of  which  lis  pendens  is  hereto 
attached  and  marked  "Exhibit  B"  and  made  a  part  hereof. 

V.  That  on  the  30th  day  of  December,  1915,  the  said 
N.  H.  Coffin,  John  McMillan  and  F.  H.  Parsons  and  their 
associates  in  interest  in  said  lands  formed  the  corporation 
plaintiff  herein  under  the  laws  of  the  state  of  Idaho,  a  copy 
of  which  articles  on  incorporation  is  hereto  attached  marked 
"Exhibit  C"  and  made  a  part  hereof. 

VI.  That  the  said  H.  N.  Coffin,  John  McMillan  and 
F.  H.  Parsons  immediately  filed  said  articles  of  incorpora- 
tion with  the  secretary  of  state  of  Idaho,  to-wit,  on  the 
8th  day  of  January,  1916,  and  on  the  17th  day  of  February, 
1916,  filed  a  certified  copy  thereof  with  the  secretary  of 
state  of  California,  and  on  the  3d  day  of  March,  1916,  filed 
a  certified  copy  thereof  with  the  county  clerk  of  Fresno 
county,  California,  and  on  the  17th  day  of  February,  1916. 
filed  with  the  secretary  of  state  of  California  a  designation 
of  the  person  upon  whom  service  of  process  may  be  made  in 


904  SUITS     IN     EQUITY. 

California,    designating    H.    G.    Redwine    of    Los    Angeles, 
California,  as  such  person. 

VII.  That  said  corporation  plaintiff  herein  was  formed  for 
the  purpose  of  removing  the  issue  involved  in  said  cause  of 
action  pending  in  said  superior  court  of  Fresno  county, 
California,  to  the  United  States  district  court,  and  to  have 
the  same  issues  tried  in  said  district  court  relative  to  the 
rights  of  the  respective  parties  in  said  lands  described  in  the 
plaintiff's  amended  bill  herein. 

VIII.  That  said  corporation  plaintiff  herein  is  the  agent 
of  the  real  parties  in  interest,  to-wit,  H.  N.  Coffin,  John 
McMillan,  F.  H.  Parsons  and  their  associates  in  interest  In 
said  lands,  and  that  no  adequate  consideration  was  given  by 
said  corporation  for  transferring  the  interests  of  the  said 
parties  to  said  corporation,  or  any  consideration  other  than 
the  issuing  of  its  capital  stock  to  the  said  parties  and  their 
associates. 

IX.  That  such  transfer  of  interest  in  said  lands  by  said 
H.  N.  Coffin,  John  McMillan,  F.  H.  Parsons  and  others 
was  made  for  the  purpose  of  transferring  the  same  issues 
•in  the  said  state  court  then  and  now  pending  to  the  United 
States  district  court. 

That  the  said  issues  and  claims  of  said  F.  F.  Doane  were 
well  known  by  said  H.  N.  Coffin,  F.  H.  Parsons  and  John 
McMillan  prior  to  the  formation  of  said  corporation  and 
the  claim  of  said  F.  F.  Doane  to  his  interest  in  said  lands 
described  in  said  amended  bill  herein  were  all  based  upon 
and  grew  out  of  contracts  with  said  parties,  which  con- 
tracts and  rights  and  claims  were  well  known  to  said  parties 
prior  to  the  formation  of  said  corporation  plaintiff  herein. 

X.  That  said  corporation  plaintiff  is  owned  and  controlled 
by  the  same  parties  named  as  defendants  in  said  action  in 
said  state  court  with  the  exception  of  the  Los  Angeles  Trust 
and  Savings  Bank,  a  corporation,  which  latter  corporation 
was  at  all  times  acting  as  the  agent  of  the  parties  to  this 
action  and  the  action  in  said  state  court. 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  905 

Wherefore,  defendant  prays  that  the  complainant  take 
nothing  and  that  the  action  be  dismissed ;  and 

That  if  it  be  determined  that  this  court  has  jurisdiction 
that  it  be  adjudged  that  the  defendant  has  an  interest  in 
said  premises  as  purchaser  and  entitled  to  their  possession, 
and  for  such  other  and  further  relief  as  may  be  just  and 
equitable. 

G.  R.  R, 

[Verification.]  Solicitor  for  Defendant. 

(1)  Foster's  Fed.  Prac.  5  ed.,  Sec.  177:  Randall  v.  Howard,  2  Black. 
585.  17  L.  ed.  269. 


No.  562. 

Answer  and  Cross-Petition  of  Holders  of  Bonds  of  Corpora- 
tion in  the  Hands  of  Receiver. 

[Caption.] 

This  answering  defendant  says  that  it  is  a  banking  cor- 
poration duly  organized  and  existing  under  the  laws  of  the 
state  of  Ohio,  with  its  principal  office  and  place  of  business 
located  at  Ironton,  in  said  state. 

That  this  answering  defendant  holds,  as  pledgee,  to  secure 
the  repayment  of  certain  moneys  loaned  and  advanced  by 
it,  as  hereinafter  set  out,  the  following  described  first  mort- 
gage five  per  cent.  (5%)  gold  bonds  of  said  The  Superior 
Portland  Cement  Company,  to-wit :  Bonds  numbered  eighty- 
two  (82),  eighty-three  (83),  eighty-four  (84),  four  hundred 
fifty-eight  (458),  four  hundred  fifty-nine  (459)  and  four 
hundred  sixty-one  (461),  all  in  the  denomination  of  one 
thousand  ($1,000)  dollars  each,  dated  June  30,  1906, 
and  due  July  1,  1936.  All  of  said  bonds  have  coupons 
attached  for  semi-annual  interest  payable  in  January  and 
July  of  each  year. 

That  this  answering  defendant  received  said  bonds  in 
due  course  of  business,  said  bonds  numbered  eighty-two  (82), 
four  hundred  fifty-eight  (458),  four  hundred  fifty-nine  (459)' 
and  four  hundred  sixty-one  (461),  being  pledged  to  secure 


906  SUITS     IN     EQUITY. 

a  note  for  two  thousand  ($2,000)  dollars,  made  by  D.  G. 
Wright  and  Nannie  H.  Wright,  dated  November  30, 
1912,  payable  on  demand,  to  the  order  of  this  answering 
defendant,  and  bearing  seven  per  cent.  (7%)  interest  per 
annum  after  date,  and  which  said  interest  has  been  paid  up 
to  the  first  day  of  October,  1913,  said  bonds  being  so 
pledged  contemporaneously  with  the  execution  of  said  note. 

That  said  bonds  numbered  eighty-three  (83)  and  eighty- 
four  (84)  are  held  in  pledge,  by  this  defendant  to  secure  the 
payment  of  a  promissory  note  in  the  sum  of  eight  hundred 
($800)  dollars,  made  by  Nannie  H.  Wright,  dated  Janu- 
ary 16,  1914,  and  due  four  months  after  date.  Said  note 
of  $800  is  a  renewal  of  a  note  originally  for  $1,000, 
executed  July  18,  1911,  upon  which  $200  was  paid  prior 
to  the  renewal  of  same  on  January  16,  1914,  said  bonds 
being  pledged  to  secure  said  loan  on  July  18,  1911,  and 
have  since  been  held,  continuously,  by  said  bank,  in  pledge 
to  secure  said  loan. 

This  answering  defendant  further  says  that  each  and 
all  of  said  bonds  were  received  by  it  in  good  faith,  said 
bank  relying  upon  the  validity  and  regularity  of  the  issue 
of  said  bonds  by  said  The  Superior  Portland  Cement  Com- 
pany, and  if  there  was  any  irregularity  concerning  the 
issue  or  negotiation  of  said  bonds,  by  said  company,  or  any 
party  to  whom  they  were  issued,  this  defendant  had  no 
notice  or  knowledge  thereof,  and  by  reason  of  the  premises, 
said  bank  is  a  bona  fide  holder  of  said  bonds. 

That  no  part  of  said  notes,  or  either  of  them,  have  been 
paid,  except  the  amount  of  interest  upon  said  note  for  two 
thousand  ($2,000)  dollars  hereinbefore  mentioned,  and 
that  there  is  due,  payable  and  unpaid,  to  this  answering 
defendant,  upon  said  note  of  D.  G.  Wright  and  Nannie  H, 
Wright,  the  sum  of  $2,000,  with  interest  at  seven  per  cent. 
(7%)  per  annum  from  October  1,  1913,  and  there  is  owing 
to  said  bank,  and  unpaid,  upon  said  note  of  Nannie  H. 
Wright,  the   sum    of   eight   hundred    ($800)    dollars,    w^hich 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  907 

will  bear  interest  at  eight  per  cent.  (8%)  per  annum,  after 
May  16,  1914. 

That  if  said  bonds  are  not  held  to  be  valid  and  binding 
obligations  of  said  The  Superior  Portland  Cement  Company, 
this  answering  defendant  will  be  greatly  prejudiced  in  its 
rights  as  holders  of  said  bonds. 

Wherefore  this  answering  defendant  prays  the  court  to 
find  and  determine  the  amount  due  and  owing  to  it  upon 
each  of  said  notes;  to  find  and  decree  that  it  is  the  bona 
fide  holder  of  the  bonds  hereinbefore  described ;  that  said 
bonds  are  a  valid  and  subsisting  obligation  of  said  defendant 
the  said  Superior  Portland  Cement  Company;  that  the  in- 
junction hereinbefore  granted  in  this  case,  so  far  as  the  same 
relates  to  the  bonds  hereinbefore  described,  be  dissolved ; 
that  it  be  permitted  to  sell  and  dispose  of  said  bonds,  or  so 
many  thereof  as  may  be  necessary  to  pay  its  said  claims, 
together  with  all  costs  and  expenses,  and  for  all  proper 
equitable  relief,  to  which  it  may  be  entitled  in  the  premises. 

A.  B.  and  C.  D., 

[Verification.]  Attorneys  for  Defendant 


No.  563. 

Order  Granting  Leave  to  Intervene  and  that  Petition  of  In- 
tervention(l)  be  Considered  as  Answer  to  Complainant 
and  Cross-Bill  to  Another  Intervener. 

[Caption.] 

The  petition  of  intervention  of  the  Producers  Oil  Com- 
pany in  the  above  styled  cause,  being  presented  to  this  court, 
it  is  ordered  that  the  Producers  Oil  Company  be  and  Is 
hereby  permitted  to  intervene  in  said  cause  as  a  defendant, 
and  that  its  said  petition  of  intervention  be  considered  as  an 
answer  to  complainant's  original  bill  and  as  a  cross-bill 
against  the  state  of  Oklahoma,  the  commissioners  of  the 
land  office  of  the  state  of  Oklahoma,  John  Henry,  W.  T. 
Barrett  and  Frank  Brown. 


908  SUITS     IN     EQUITY. 

It  is  further  ordered  that  said  interveners,  the  state  of 
Oklahoma,  the  commissioners  of  the  land  office  of  the  state 
of  Oklahoma,  John  Henry,  W.  T.  Barrett  and  Frank  Brown 
be  required  to  plead,  demur  or  answer  said  cross-bill  as 
and  within  the  time  that  they  would  be  requited  to  plead, 
demur  or  answer  to  an  original  bill  filed  in  said  court  as  of 
this  date. 

This  16th  day  of  January,  1915. 

Ralph  E.   Campbell, 

Judge. 

(1)  On  intervention  see  Equity  Rule  37;  Foster's  Fed.  Prac,  5  ed., 
Sees.  258  to  261;  Whitehouse  Equity  Practice,  Sees.  205,  211,  212. 


No.  564. 

Petition  of  Intervention,(l)  Considered  as  Answer  and 
Cross-Bill. 

[Caption.] 

Now  comes  the  Producers  Oil  Company  and  by  leave  of 
court,  files  its  intervention  in  the  above  styled  and  numbered 
cause,  and  for  its  answer  to  complainant's  original  bill,  and 
its  cross-bill  against  the  state  of  Oklahoma,  the  commis- 
sioners of  the  land  office  of  the  state  of  Oklahoma,  John 
Henry,  W.  T.  Barrett  and  Frank  Brown,  defendants  in  said 
cause,  alleges  and  says : 

First.  The  intervenor.  Producers  Oil  Company,  is  a  cor- 
poration organized  and  authorized  to  do  business  under  and 
by  virtue  of  the  laws  of  the  State  of  Texas,  with  its  principal 
place  of  business  in  the  city  of  Houston,  Harris  county. 
Texas,  and  it  is  a  citizen  and  resident  of  the  said  state  of 
Texas. 

Second.  This  intervenor  admits  the  allegations  contained 
in  the  first  and  second  paragraphs  of  the  bill  of  complaint  filed 
in  this  cause,  and  it  also  admits  the  allegations  of  the  third 
paragraph  of  said  bill  of  complaint,  except  those  allegations 
wherein  it  is  alleged  that  the  Creek  Tribe,  or  Nation  of  In- 
dians is  the  owner  of  the  hereinafter  described  land,  which 


COMMON    FORMS    USED    IN     FRAMING    ANSWERS.         909 

said  land  is  covered  and  included  in  the  description  of  the 
land  set  out  in  said  bill  of  complaint,  to-wit : 

The  west  3  acres  of  lot  3  in  section  6,  township  18  north, 
range  7  east;  lots  7  and  8  of  section  6,  township  18  north. 
range  7  east  (35.9/100)  acres;  also  lot  5  of  section  5,  and 
lots  5  and  6  of  section  6,  township  18  north,  range  7  east, 
containing  in  all  124  acres,  more  or  less,  in  Creek  county, 
Oklahoma. 

And  intervenor  says  as  to  said  described  land  and  to  each 
and  every  part  thereof,  included  in  the  description  of  the  land 
set  out  in  said  bill  of  complaint,  this  intervenor  denies  that 
the  state  of  Oklahoma,  or  the  Creek  nation  or  tribe  of  In- 
dians has  any  right,  title,  claim  or  interest  in  or  to  any  part 
thereof;  and  intervenor  further  denies  that  the  state  of  Okla- 
homa, or  the  commissioners  of  the  land  office  of  the  state  of 
Oklahoma,  or  their  lessees,  or  the  defendants,  John  Henry, 
W.  T.  Barrett  or  Frank  Brown  have  any  right,  title,  claim  or 
interest  therein,  but  this  intervenor  alleges  that  all  of  the 
above  described  land  was,  at  the  time  of  the  bringing  of  said 
suit,  and  still  is,  the  property  in  fee  of  Mabel  Dale,  a  minor, 
and  that  intervenor  owns  a  valid  oil  and  gas  lease  thereon,  as 
hereinafter  more  fully  set  out. 

Third.  Said  intervenor  further  admits  the  execution  of  the 
several  leases  by  the  commissioners  of  the  land  office  of  the 
state  of  Oklahoma,  as  set  out  in  said  original  bill  of  com- 
plaint, and  in  the  intervention  of  the  state  of  Oklahoma  and 
the  commissioners  of  the  land  office  of  the  state  of  Oklahoma, 
and  of  Frank  Brown. 

Fourth.  This  intervenor  is  filed  in  subordination  to  and 
in  recognition  of  the  propriety  of  the  bill  of  complaint  filed 
in  this  cause,  if  the  complainant,  the  United  States  of  Amer- 
ica, has  any  right,  title,  claim  or  interest  in  and  to  the  above 
described  tracts  or  parcels  of  land,  but  intervenor  denies 
that  said  complainant  has  any  such  right,  title,  interest  or 
claim  to  that  part  of  the  land  described  in  paragraph  second 
of  this  intervention,  and  alleges  that  it  owns  a  valid  oil  and 


910  SUITS     IN     EQUITY. 

gas  lease  on  the  land  described  in  paragraph  second  of  this 
petition,  as  is  hereafter  more  fully  set  out. 

Fifth.  Except  as  herein  expressly  admitted,  this  intervenor 
denies  each  and  every  allegation  in  said  bill  of  complaint 
contained. 

Sixth.  For  its  further  answer  to  said  bill  of  complaint 
and  for  its  cross-bill  of  complaint  [against]  the  defendants, 
the  state  of  Oklahoma,  and  the  commissioners  of  the  land 
office  of  the  state  of  Oklahoma,  John  Henry,  W.  T.  Barrett 
and  Frank  Brown,  this  intervenor  alleges  and  says: 

Seventh.  Intervenor  alleges  that  Mabel  Dale  is  a  duly 
enrolled  Indian  of  the  Creek  nation  of  one-sixteenth  degree 
of  blood,  and  that  she  is  a  minor  under  the  age  of  eighteen 
years  and  resides  with  her  parents  in  Payne  county,  state  of 
Oklahoma. 

That  heretofore,  to-wit,  on  the  1st  day  of  April,  1904,  the 
Creek  nation  executed  to  the  said  Mabel  Dale,  patents  to  the 
following  described  land,  which  is  now  situated  in  and  a 
part  of  the  lands  of  Creek  county,  state  of  Oklahoma,  and 
that  said  patents  were  duly  approved  by  the  Secretary  of  the 
Interior  on  the  26th  day  of  April,  1904,  and  were  thereafter 
delivered  to  the  said  Mabel  Dale,  and  copies  of  the  same 
are  hereto  attached,  marked  exhibit  "A,"  to  which  reference 
is  prayed;  the  land  conveyed  by  said  patents  is  described  as 
follows,  to-wit: 

Lots  7  and  8  of  section  6,  township  18  north,  range  7 
east  (35.9/100)  acres;  also  lot  5  of  section  5,  and  Ipts  5  and 
6  of  section  6,  township  18  north,  range  7  east,  containing 
in  all  121  acres,  more  or  less. 

And  that  on  the  8th  day  of  April,  1909,  the  Creek  nation 
executed,  and  afterwards  on  the  14th  day  of  May,  1909,  the 
Secretary  of  the  Interior  approved,  a  patent  which  was  in 
due  course  delivered  to  said  Mabel  Dale,  covering  the  follow- 
ing described  land,  which  is  now  situated  in  and  is  a  part  of 
the  lands  of  Creek  county,  state  of  Oklahoma,  to-wit: 


COMMON    FORMS    USED    IN     FRAMING     ANSWERS.  911 

The  west  3  acres  of  lot  3  in  section  6,  township  18  north, 
range  7  east, 

and  that  acting  under  said  patents,  the  said  Mabel  Dale,  act- 
ing by  and  through  her  guardian,  took  possession  of  said 
described  premises,  and  has  at  all  times  since  owned  and 
remained  in  possession  thereof. 

That  heretofore,  to-wit,  on  the  29th  day  of  May,  1912, 
Oliver  C.  Dale,  who  is  the  father  of  said  minor,  Mabel  Dale, 
was  duly  appointed  and  qualified  as  guardian  of  the  estate  of 
the  said  Mabel  Dale,  and  he  is  still  the  duly  appointed,  quali- 
fied and  acting  guardian  of  said  estate  and  has  been  at  all 
times  since  his  said  appointment. 

Intervenor  further  shows  that  the  Cimarron  river,  which 
is  a  non-navigable  stream,  runs  in  a  northwesterly  direction 
through  the  southwest  corner  of  section  5,  and  entirely 
through  section  6,  and  that  lot  5  in  section  5,  and  the  west 
3  acres  of  lot  3,  and  lots  5,  6,  7  and  8  in  section  6,  town- 
ship 18  north,  range  7  east,  above  described,  are  traversed 
by  the  said  Cimarron  river.  That  said  river  is  a  meandered 
stream  and  the  meander  line  thereof  on  the  east  is  laid  out 
in  the  west  3  acres  of  lot  3  and  lots  7  and  8  of  said  section 
6,  and  of  lot  5  in  said  section  5,  and  said  meander  line  on 
the  west  bank  of  said  river  is  laid  out  upon  lots  5  and  6  in 
said  section  6  above  described ;  and  intervenor  shows  that  by 
reason  of  said  patents  and  the  location  of  the  land  thereby 
conveyed  to  said  Mabel  Dale,  that  the  said  Mabel  Dale  there- 
by acquired  title  from  the  United  States  government  and  the 
Creek  nation  as  riparian  owner  of  the  main  land  to  all  that 
part  of  said  Cimarron  river  abutting  upon  the  west  3  acres 
of  lot  3  in  section  6,  and  extending  from  the  main  land  to 
the  middle  or  thread  of  the  stream ;  and  by  reason  of  said 
patents  and  the  location  of  the  land  in  lots  5  and  6  in  sec- 
tion 6,  which  are  located  on  the  west  side  of  the  said  Cimar- 
ron river,  and  lots  7  and  8  of  section  6,  which  are  located 
on  the  east  side  of  said  Cimarron  river,  said  lots  7  and  8 
being  opposite  to  the  said  lots  5  and  6,  the  said  Mabel  Dale 


912  SUITS    IN    EQUITY. 

became  the  owner  of  all  of  the  Cimarron  river  extending- 
from  the  main  land  on  the  east  where  the  river  abuts  lots 
7  and  8  the  main  line  on  the  west  where  the  river  abuts  lots 
5  and  6,  and  including-  the  entire  bed  of  said  stream ;  and  by 
reason  of  said  patents  and  the  location  of  the  land  in  lot  5 
in  section  5,  the  said  Mabel  Dale  became  the  owner  of  all 
the  land  between  the  main  land  and  the  middle  or  thread  of 
the  stream  opposite  the  land  she  owned  in  said  lot  5  in  sec- 
tion 5.  The  plat  of  said  lots  and  said  river  is  hereto  attached, 
marked  Exhibit  "B,"  and  is  referred  to  for  a  description  of 
the  location  of  said  lots  and  of  said  river. 

Intervenor  further  shows  that  on  the  14th  day  of  June, 
1912.  the  said  Oliver  C.  Dale,  as  guardian  of  said  Mabel 
Dale,  filed  his  application  in  the  county  court  of  Payne  county, 
Oklahoma,  wherein  said  guardianship  was  pending,  for  per- 
mission to  lease  the  above  described  land  for  oil  and  gas 
mining  purposes;  that  on  the  14th  day  of  June,  1912,  W.  H. 
Wilcox,  judge  of  the  county  court  of  Payne  county,  Okla- 
homa, then  acting  in  said  matter,  authorized  said  guardian  to 
make  a  sale  of  an  oil  and  gas  mining  lease  on  said  above 
described  property;  that  on  said  14th  day  of  June,  1912,  the 
said  Oliver  C.  Dale,  as  guardian  aforesaid,  made  his  report 
to  the  court  that  he  had  sold  an  oil  and  gas  mining  lease, 
pursuant  to  the  order  of  the  court,  on  the  above  described 
property  to  the  Producers  Oil  Comapny;  that  on  the  14th 
day  of  June,  1912.  said  sale  being  reported  to  the  court,  the 
said  W.  H.  Wilcox,  judge  of  the  county  court  of  Payne 
county,  then  acting  in  said  matter,  made  an  order  confirming 
the  sale  of  said  oil  and  gas  mining  lease  to  the  Producers 
Oil  Company. 

That  thereupon,  on  the  14ch  day  of  June,  1912,  the  said 
Oliver  C.  Dale,  as  guardian  of  the  estate  of  said  Mabel  Dale, 
a  minor,  filed  and  presented  to  the  court  his  final  report  of 
the  execution  of  said  oil  and  gas  mining  lease  to  the  Pro- 
ducers Oil  Company,  and  that  thereafter,  on  the  1st  day  of 
July,  1912,  the  same  being  a  regular  day  of  the  July,  1912, 
term  of  said  court,  the  said  report  of  the  guardian  of  the 


COMMON    FORMS    USED    IN     FRAMING    ANSWERS.  913 

making  of  said  lease  to  the  Producers  Oil  Company  coming 
on  for  hearing,  an  order  was  entered  by  the  said  W.  H.  Wil- 
cox, judge  of  the  county  court  of  Payne  county,  then  acting 
in  said  matter  confirming  said  oil  and  gas  lease  and  directing 
said  guardian  to  deliver  the  same  to  the  Producers  Oil  Com- 
pany, as  the  order  of  confirmation  of  the  sale  provided. 

Intervenor  further  shows  that  in  pursuance  of  the  order  of 
the  county  court  confirming  and  approving  said  sale,  the  said 
Oliver  C.  Dale,  as  guardian  of  the  said  Mabel  Dale,  did  on 
the  14th  day  of  June,  1912,  execute  an  oil  and  gas  lease  on 
the  above  described  property  to  the  Producers  Oil  Company, 
which  said  lease  was  acknowledged  on  the  18th  day  of  June, 
1912,  and  was  presented  to  and  examined  and  approved  con- 
currently with  the  order  of  confirmation  thereof,  as  above 
set  out,  by  the  said  W.  H.  Wilcox,  judge  of  the  county  court 
of  Payne  county,  Oklahoma,  and  was  thereupon  duly  deliv- 
ered to  the  Producers  Oil  Company,  a  copy  of  which  said 
lease  is  hereto  attached,  marked  Exhibit  "C." 

That  said  oil  and  gas  lease  covered  all  of  the  property 
included  within  the  above  described  patents  and  all  of  the 
property  rights,  privileges  and  appurtenances  in  said  land 
and  in  and  to  the  said  Cimarron  river,  which  was  conveyed 
to  the  said  Mable  Dale  by  reason  of  the  said  patents  and  by 
reason  of  the  location  of  the  land  therein  described,  with  ref- 
erence to  said  Cimarron  river,  which  said  lease  .was  duly 
recorded  in  the  oflRce  of  the  register  of  deeds  of  Creek  county,' 
Oklahoma,  in  book  81,  at  page  669,  on  the  26th  day  of 
September,  1912,  at  3 :  30  o'clock  p.  m.,  and  said  lease  is  in 
full  force  and  effect;  and  intervenor  shows  that  under  and 
by  virtue  thereof,  it  went  into  possession  of  said  property 
during  or  about  the  month  of  July,  1913,  and  began  to  oper- 
ate said  property  for  oil  and  gas  purposes  and  sunk  four  wells 
thereon,  which  said  wells  were  located  on  lot  5  of  section  5 
of  the  land  above  described,  and  intervenor  is  still  in  pos- 
session of  said  oil  and  gas  lease  and  the  leasehold  estate  and 
the  property  conveyed  thereby  for  oil  and  gas  purposes,  and 


914  SUITS     IN     EQUITY. 

is  still  in  good  faith  operating  and  developing  same  for  oil 
and  gas  purposes,  as  provided  by  said  lease. 

Intervenor    further   shows   that   heretofore,    to-wit:   on   or 

about  the  day  of  ,    19 — ,  the  said  Frank  Brown 

unjustly  and  illegally  claiming  some  title  or  interest  in  and 
to,  or  some  kind  of  an  oil  and  gas  lease  on  that  part  of  the 
Cimarron  river  bed  opposite  said  above  described  lands  and 
between  the  main  land  and  the  middle  or  thread  of  the 
stream  of  said  river,  which  said  land  was  owned  and  in  the 
possession  of  the  said  Mabel  Dale,  and  on  which  Oliver  C. 
Dale,  as  the  guardian  of  said  Mabel  Dale,  executed  the  above 
described  oil  and  gas  lease  to  this  intervenor,  went  upon  said 
land  and  on  that  part  of  said  land  lying  between  the  said 
main  land  of  lot  5  in  section  5  and  the  middle  or  thread  of 
the  said  river  abutting  upon  said  main  land,  and  began  to 
develop  same  for  oil  and  gas  purposes  by  drilling  a  well,  or 
wells,  for  oil  or  gas  thereon,  and  the  said  Frank  Brown  is 
now  continuing  to  drill  said  well  and  is  intending  to  complete 
same,  and  to  drill  other  wells  on  the  land  covered  by  com- 
plainant's lease,  above  set  out,  to  the  oil-bearing  sand  there- 
under. 

Intervenor  further  shows  that  oil  and  gas  are  found  in  the 
sands  and  in  pools  under  said  land  of  the  said  Mabel  Dale 
and  other  lands  contiguous  thereto  and  in  that  neighborhood, 
and  that  said  oil  and  gas  is  of  a  fugacious  nature,  and  that 
the  land,  when  the  oil  and  gas  therefrom  is  extracted,  be- 
comes barren  of  oil  and  said  oil  is  not  by  nature  replaced  in 
said  sand  or  pools,  and  the  oil  so  extracted  from  said  land 
becomes  separated  therefrom  and  lost  to  the  owner  of  said 
lands  from  which  said  oil  is  extracted. 

Intervenor  further  shows  that  it  is  the  purpose  and  inten- 
tion of  said  Frank  Brown  to  operate  said  well,  when  com- 
pleted, and  the  oil  therefrom  will  be  brought  to  the  surface 
by  him,  his  agents  or  assigns,  and  temporarily  placed  in 
tanks  and  from  thence  conveyed  to  storage  tanks,  or  through 
pipe  lines  or  tank  cars  and  sold,  and  intervenor  will  have 
no  means  of  ascertaining  the  quantity  of  oil  or  gas  so  ex- 


COMMON    FORMS    USED    IX     FRAMING    ANSWERS.  915 

tracted  or  when  the  same  was  extracted,  or  at  what  price 
same  should  be  accounted  for. 

Intervenor  further  shows  that  oil  so  extracted  and  placed 
in  tanks  will  be  mixed  and  mingled  with  other  oils  and  will 
be  sold  to  different  parties  living  in  different  states,  and  that 
the  royalty  will  be  run  in  the  name  of  the  lessors  of  said 
Frank  Brown,  who  are  other  and  different  persons  from  the 
said  Mabel  Dale,  and  that  it  will  be  impossible  to  recover  the 
said  oil  or  the  value  thereof  without  a  multiplicity  of  suits. 
Intervenor  further  shows  that  the  oil  wells  in  the  neig-h- 
borhood  of  the  property  of  the  said  Mabel  Dale  above  de- 
scribed, are  very  large  producers  of  oil,  some  of  said  wells 
producing  as  high  as  7,000  barrels  of  oil  a  day,  and  that  the 
financial  responsibility  of  said  Frank  Brown  is  entirely  inade- 
quate to  respond  to  the  intervenor  for  the  loss  which  will 
be  sustained  by  reason  of  the  producing  and  sale  of  the  oil 
in  the  well  now  being  drilled  and  in  other  wells  which  he 
intends  to  and  will  drill  upon  other  parts  of  the  property 
covered  by  intervenor's  lease. 

Eighth.  Intervenor  further  shows  that  unless  the  said 
Frank  Brown  is  restrained  and  enjoined  by  said  court  from 
drilling  in  said  well  now  being  drilled  and  from  drilling  other 
wells,  which  he  intends  to  drill  on  said  land  and  from  pro- 
ducing oil  therefrom,  that  it  will  thereby  cause  intervenor 
irreparable  injury,  and  that  intervenor  has  no  adequate 
remedy  at  law. 

Wherefore,  intervenor  prays  that  this  court  may  permit 
this  intervention  to  be  filed  and  that  the  intervenor,  Frank 
Brown,  his  agents  and  servants,  assignees  and  all  other  per- 
sons acting  by,  through  or  under  him,  be  enjoined  and  re- 
strained from  drilling  in  and  completing  said  well,  and  from 
drilling  other  wells  for  oil  or  gas  on  the  premises  above 
described,  and  from  operating  the  same  for  oil  or  gas  there- 
from. 

Intervenor  further  prays  that  it  be  allowed  all  of  the  rights 
of  a  defendant  as  to  said  original  petition,  and  that  its  title 
to  the  oil  and  gas  lease  claimed  by  it  on  the  land  described 


916  SUITS    IN     EQUITY. 

in  the  second  paragraph  of  this  petition  be  established  and 
declared  to  be  a  valid  bona  fide,  existing-  oil  and  gas  lease  in 
and  to  the  said  described  property,  and  that  the  cloud  on  its 
title  by  reason  of  the  claim  of  the  United  States  of  America, 
acting  for  and  on  behalf  of  the  Creek  nation  of  Indians,  and 
the  Creek  nation  of  Indians,  and  the  state  of  Oklahoma,  and 
the  commissioners  of  the  land  office  of  the  state  of  Oklahoma, 
and  the  said  Frank  Brown  and  the  said  John  Henry  and 
W.  T.  Barrett  be  removed,  and  for  such  other  relief,  general 
or  special,  legal  or  equitable,  as  it  may  be  entitled  to. 

DiLLARD  &  Blake, 
Attorneys  for  Intervenor  Producers  Oil  Company. 

(1)  Intervention.  In  Swift  v.  Black  Panther  Co.,  244  Fed.  20,  156 
C.  C.  A.  448,  the  court  lays  down  the  principles,  on  a  copious  citation 
of  authorities,  which  govern  the  right  to  intervene.  On  page  458  two 
cases  are  pointed  out:  (a)  where  it  is  not  indispensable  to  the  preserva- 
tion or  enforcement  of  the  claim  of  the  petitioner,  permission  is  dis- 
cretionary with  the  court;  (b)  where  the  petitioner  claims  a  lien  or 
interest  in  specific  property  in  the  exclusive  jurisdiction  and  subject 
to  the  exclusive  disposition  of  a  court,  and  such  lien  or  interest  can 
be  established,  preserved  or  enforced  in  no  other  way  than  by  the 
determination  and  action  of  that  court,  the  petitioner  has  an  absolute 
right  to  intervene,  and  if  the  court  refuses  the  petitioner  may  review 
by  appeal  an  order  refusing. 

Equity  Rule  Zl  authorizes  permission  to  a  claimant  to  set  up  his 
right  by  intervention,  which  shall  be  in  subordination  to  and  in  recog- 
nition of  the  propriety  of  the  main  proceeding. 

In  Hutchinson  v.  Philadelphia  &  G.  S.  S.  Co.,  216  Fed.  795,  inter- 
vention by  stockholder  was  denied  in  a  creditors'  suit  against  a  cor- 
poration where  a  receiver  was  appointed  to  conserve  the  corporate 
assets,  which  were  subsequently  sold  publicly,  where  the  complaint 
set  out  by  intervenor  was  that  he  believed  the  stockholders  and 
directors  had  organized  a  new  corporation  to  buy  up  the  assets  of 
the  old  one  at  an  inadequate  price,  the  court  saying  that  the  personal 
liability  to  intervenor  of  the  complainant,  the  receiver,  and  the  direc- 
tors for  losses  sustained  by  receiver's  sale  of  assets  must  be  enforced 
in  a  separate  suit;  for  intervention  enforcing  personal  liability  in  a 
suit  instituted  to  preserve  the  interest  of  all  creditors  and  of  continuing 
the  business  would  not  be  "in  subordination  to  and  in  recognition  of 
the  propriety  of  the  main  proceedings"  as  required  by  Equity  Rule  Zl. 

In  Glass  v.  Woodman,  223  Fed.  621,  intervention  was  refused,  the 
grounds  alleged  being  that  (a)  intervenor  can  not  maintain  an  inde- 
pendent action  at  law  in  the  federal  court  because  complainants  can 
not  be  found  for  service,  and  foreign  attachment  is  not  a  permissible 


COMMON    FORMS    USED    IN     FRAMING    ANSWERS.  917 

instrument  for  initiating  jurisdiction  in  federal  courts;  (b)  intervener 
can  not  maintain  an  action  in  a  state  court  by  attachment,  although 
the  state  law  so  permits,  because  the  property  to  be  reached  is  in 
custodia  legis. 

Here  the  intervenor  sought  to  enforce  against  some  of  the  com- 
plainants an  unliquidated  claim  for  damages  for  breach  of  contract. 

The  suit  here  was  for  foreclosure  and  the  intervenor  could  not 
show  any  claim  to  the  mortgage  bond  or  any  interest  in  or  lien  upon 
the  property  or  the  fund  to  be  administered,  or  that  he  was  an  un- 
secured creditor  of  the  defendant  with  rights  that  might  be  affected 
by  the  foreclosure.    At  page  623  the  court  says: 

"Appellant's  (intervenor's)  claim  is,  in  respect  of  the  subject-matter 
of  the  suit,  neither  with  nor  against  any  of  the  parties,  and  in  a  legal 
sense  it  can  not  be  affected  by  the  decree.  It  is  so  remote  as  not  to 
have  challenged  the  discretion  of  the  trial  court." 

In  Jennings  v.  Smith,  242  Fed.  561,  564,  one  who  became  a  party 
defendant  by  intervention  was  stricken  from  the  records  upon  his  own 
application,  against  the  contention  that  he  was  an  indispensable  party, 
the  court  saying  that  there  was  no  mention  of  intervenor  in  the  origi- 
nal bill;  he  had  voluntarily  come  in,  and  his  application  to  be  stricken 
was  a  conclusive  answer  to  his  being  indispensable,  no  collusion  be- 
ing shown. 

Citjzenship  and  jurisdictional  amount  are  not  of  importance 
in  intervention,  and  therefore  averments  as  to  those  matters 
need  not  appear  in  the  petition  of  the  intervenor.  In  case  of  a  receiver- 
ship of  a  railway,  the  court  already  has  control  over  the  property  and 
the  petitioner  in  intervention  comes  in  pro  suo  interesse  in  a  subject- 
matter  already  in  the  jurisdiction  of  the  court  because  of  former  pro- 
ceedings. 


No.  565. 

Allegation  in  Answer  Denying  Jurisdiction  and  Praying 

Dismissal.  ( 1 ) 
[Caption.] 

Further  answering  this  respondent  alleges  that  this  court  is 
without  jurisdiction  to  enjoin  the  process  of  the  district  court 
of  Creek  county,  and  is  without  jurisdiction  to  grant  the 
reHef  asked  for  in  said  application  for  injunction. 

Wherefore,  this  respondent  prays  that  said  application  for 
injunction  be  dismissed  and  the  relief  therein  prayed  for  be 
denied. 

(1)   Equity  Rule  29. 


918  SUITS     IN     EQUITY. 

No.  566. 

Defense  of  Res  Adjudicata  Both  in  State  and  Federal 

Courts. 

On  information  and  belief,  defendant  avers  that  upon  the 
same  facts  which  are  made  to  appear  in  this  cause  in  this 
court  it  was  decided  by  said  superior  court  of  Grand  Rapids, 
in  chancery,  that  no  preliminary  injunction  ought  to  be 
granted,  and  the  same  was  denied ;  that  said  state  court  had 
jurisdiction  over  the  parties  and  the  subject-matter;  that  the 
parties  in  said  suit  were  the  complainant  in  the  instant  cause 
and  the  principal  of  the  defendant  in  the  instant  cause;  that 
the  decision  so  made  is  binding  upon  the  parties  to  this  cause; 
that  the  question  now  presented  respecting  the  right  of  com- 
plainant to  a  preliminary  injunction  in  this  case  is  res 
adjudicata,  the  same  having  been  determined  adversely  to 
complainant  in  said  suit  in  the  state  court;  that  the  complain- 
ant in  this  cause  voluntarily  instituted  said  suit  in  the. state 
court  instead  of  commencing  suit  in  this  court  for  the  enforce- 
ment of  its  alleged  rights;  that  under  the  rules  of  comity 
which  prevail  in  the  courts,  state  and  federal,  this  court  should 
not  now  award  an  injunction  against  the  defendant  which 
upon  the  identical  showing  the  state  court  has  denied ;  that  to 
award  an  injunction  in  this  cause  after  a  decision  adverse  to 
complainant  in  the  state  court  would  create  unseemly  conflict 
between  the  state  and  federal  courts;  that  by  reason  of  the 
acts,  matters  and  things  hereinbefore  set  out,  said  complainant 
is  and  of  right  ought  to  be  estopped  to  maintain  this  suit  in 
this  court  or  to  apply  for  a  preliminary  injunction  herein. 

On  information  and  belief  defendant  avers  that  upon  the 
same  facts  which  are  made  to  appear  in  this  cause  in  this  court 
it  was  decided  by  said  district  court  of  the  United  States  for 
the  western  district  of  Michigan,  southern  division,  in  equity, 
that  no  preliminary  injunction  ought  to  be  granted  as 
respects  said  alleged  oval  trade-mark  appearing  in  certificate 
No  57567,  and  the  same  was  denied;  that  said  district  court 
had  jurisdiction  over  the  parties  and  the  subject-matter;  that 


EXCEPTIONS.  919 

the  parties  in  said  suit  in  said  United  States  court  for  the 
western   district  of  Michigan   were   the   complainant   in   this 
suit  and  the  principal  of  the  defendant  in  the  instant  cause ; 
that  the  decision  so  made  is  binding  upon  the  parties  to  this 
cause;  that  the  question  now  presented  respecting  the  right  of 
complainant    to    a    preh'minary    injunction    in    this    cause    as 
respects  said  alleged  oval  trade-mark  appearing  in  certificate 
No.  57567,  is  res  adjudicata,  the  same  having  been  determined 
adversely  to  complainant  in  said  suit  in  the  district  court  of 
the  United  States  for  the  western  district  of  Michigan ;  that 
the  complainant  in  this  cause  voluntarily  instituted  said  suit 
in  the  United   States  district  court   for  the   western   district 
of  Michigan  prior  to  and  instead  of  commencing  suit  in  this 
court  for  the  enforcement  of  its  alleged  rights  in  said  trade- 
mark; that  under  the  rules  of  comity  which  prevail   in   the 
courts,  state  and   federal,  this  court  should  not  now  award 
an    injunction    against    defendant    which    upon    the    identical 
showing  the  district  court  of  the  United  States  for  the  west- 
ern district  of  Michigan  has  denied ;  that  to  award  an  injunc- 
tion in  this  cause  after  a  decision  adverse  to  complainant  in 
said  district  court  of  the  United  States  for  the  western  district 
of  ]\Iichigan  would  create^  unseemly  conflict  between  federal 
courts  in  the  same  circuit;  that  by  reason  of  the  acts,  matters 
and  things  hereinbefore  set  out  said  complainant  is  and  of 
right  ought  to  be  estopped  to  maintain  this  suit  in  this  court, 
or  to  apply  for  a  preliminary  injunction  herein  as  respects  said 
alleged  oval  trade-mark  appearing  in  certificate  No.  57567. 


EXCEPTIONS.(l) 

No.  567. 

(1)  Exceptions  are  abolished  by  Equity  Rule  33. 


920  SUITS     IN     EQUITY. 

DISCLAIMER. 

No.  568. 

General  Form.(l) 
[Caption.] 

The  disclaimer  of  the  defendant.  C.  D.,  for  the  bill  of  com- 
plaint herein. 

This  defendant  says  that  he  does  not  know  that  he,  the  said 
C.  D.,  to  his  knowledge  and  belief,  ever  had,  nor  did  he 
claim  or  pretend  to  have,  nor  does  he  now  claim  any  right, 
title,  or  interest  of,  in,  or  to  the  estates  and  premises,  situated 
[describe  thcju],  in  the  said  bill  of  complaint  set  forth,  or 
any  part  thereof;  and  this  defendant  disclaims  all  right,  title, 
and  interest  in  and  to  the  said  estate  and  premises  in  [name 
situation],  in  the  said  bill  of  complaint  mentioned,  and  every 
part  thereof;  and  this  defendant  prays  leave  to  be  dismissed 
with  his  reasonable  costs  and  charges  in  this  behalf  most 
wrongfully  sustained.  C.  D. 

Y.  &  Y., 

Solicitors  for  C.  D. 

[Verification.] 

(1)  See  Beach's  Mod.  Eq.  Prac,  Sec  283;  Foster's  Fed.  Prac,  5  ed.. 
Sec.  196;  Bates  Fed.  Eq.,  Sees.  305  and  306;  Whitehouse  Eq.  Prac, 
Sees.  283  to  291. 


REPLICATION.(l) 
No.  569. 

Replications  are  not  required  under  the  present  equity  rules.  See 
Rule  31,  according  to  which  any  new  or  affirmative  matter  in  the  an- 
swer will  be  deemed  to  be  denied,  unless  such  matter  is  a  set-off  or 
counterclaim,  whereupon  a  reply  shall  be  made  in  the  time  limited 
by  the  rule. 

In  Goodno  v.  Hotchkiss,  230  Fed.  514,  at  page  518,  the  court  says: 
"Rule  31  *  *  *  has  done  away  with  all  replications  to  answers  by 
providing  that"  (here  follows  the  rule).  See  also  Shera  v.  Merchants' 
Life  Ins.  Co.,  237  Fed.  484,  at  page  486. 


•       NOTICES,      MOTIONS,     ORDERS,     DECREES,     ETC.  921 

NOTICES,  MOTIONS,  ORDERS,  DECREES,  ETC. 

No.  570. 

Notice  to  Codefendants  to  Join  in  Appeal. 
[Caption.] 

Please  take  notice,  that  the  city  of  Kansas  City,  Missouri, 
is  about  to  appeal  to  the  supreme  court  of  the  United  States 
from  the  order  and  judgment  of  the  district  court  of  the 
United  States  for  the  district  of  Kansas,  first  division,  made 
and  entered  on  the  thirteenth  day  of  August.  1917,  and  is 
about  to  apply  to  the  district  court  of  the  United  States  for 
the  district  of  Kansas,  first  division,  for  the  allowance  of 
such  appeal :  and  hereby  demands,  requests  and  notifies  you, 
and  each  of  you,  to  join  in  such  appeal  and  in  the  applica- 
tion to  said  court  for  the  allowance  thereof. 

Dated  at  Kansas  City,  Missouri,  September  1,  1917. 

A.  B., 
City  Counselor  of  Kansas  City,  Mo., 

Its  Attorney. 

Service  of  the  above  notice  is  accepted  this  day  of 

,  1917.  R.  X. 


No.  571. 

Affidavit  of  Service  by  One  not  an  Officer. 

State  of  Missouri, 

County  of  Jackson,  ss : 

Benj.  M.  Powers,  of  lawful  age,  having  been  first  duly 
sworn,  upon  his  oath  states  that  he  served  the  above  notice 
upon  each  of  the  above  named  defendants  to  whom  said 
notice  is  directed,  by  either  personally  delivering  copies  of 
said  notice  to  such  defendants,  or  by  sending  copies  of  said 
notice  through  the  United  States  mails  and  receiving  from 
such  defendants  acknowledgments  evidencing  the  receipt  of 
said  notice  by  such  defendants,  or  by  sending  copies  of  said^ 


922  SUITS    IN     EQUITY. 

notice  by   registered   United    States    mail,    properly   stamped 
and  addressed  to  such  defendants. 

Benj.  M.  Powers. 
Subscribed  and  sworn  to  before  me  this  October  30,  1917. 
My  commission  expires  May  11,  1921. 

Carrie  M.  Tvuri'ELius, 
Notary  Public,  Jackson  County,  AIo. 
Filed  in  open  court  this  31st  day  of  October,  1917. 

Wilbur  F.  Booth, 
Judge. 

No.  572. 

Notice  of  Motion  to  Dismiss  Because  no  Diversity  of 
Citizenship. 

[Caption.] 

Sir:  Please  take  notice  that  upon  the  complaint  herein 
and  the  answer  of  the  defendant.  The  Shubert  Theatrical 
Company  (a  New  Jersey  corporation),  the  undersigned  will 
move  this  court  on  Thursday,  the  7th  day  of  September, 
1916,  at  ten  o'clock  in  the  forenoon  of  said  day,  or  as  soon 
thereafter  as  counsel  can  be  heard,  for  an  order  directing  the 
dismissal  of  the  bill  of  complaint  herein  upon  the  ground  that 
it  does  not  allege  facts  sufficient  to  grant  unto  this  court 
jurisdiction  of  the  cause  of  action  or  of  the  person  of  the 
said  defendant,  Shubert  Theatrical  Company  (a  New  Jersey 
corporation),  inasmuch  as  it  appears  upon  the  face  of  the 
bill  of  complaint  that  the  said  defendant  is  a  corporation 
organized  and  existing  under  the  laws  of  the  state  of  New 
Jersey  and  resident  of  the  state  of  New  Jersey,  and  is  not  a 
resident  or  inhabitant  of  the  southern  district  of  New  York 
or  the  state  of  New  York,  and  that  there  is  not  such  a 
diversity  of  citizenship  between  the  complainant  and  defend- 
ants herein  which  will  grant  unto  this  court  jurisdiction  of 
the  alleged  cause  of  action  contained  in  the  bill  of  complaint, 
and  that  it  further  appears  on  the  face  of  the  bill  of  com- 
plaint that  the  complainant  herein  is  a  resident  of  the  state 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  923 

of  New  York  in  the  southern  district  of  New  York,  and  that 
the  bill  of  complaint  further  fails  to  allege  jurisdictional  facts 
sufficient  to  grant  unto  this  court  jurisdiction  of  the  alleged 
cause  of  action  or  of  the  persons  in  that  it  fails  to  allege  the 
residence  of  the  defendants,  Lee  Shubert,  Jacob  J.  Shubert, 
Irving  M.  Dittenhoefer,  as  receiver  in  bankruptcy  of  Theo- 
dore A.  Liebler  and  George  C.  Tyler,  co-partners  doing 
business  as  Liebler  &  Company,  and  for  such  other  and 
further  relief  as  may  be  equitable  and  just. 

Yours,  etc., 

A.  B., 
Solicitor  for  Defendant. 
[Acknowledgment.  ] 


No.  573. 

Notice  of  Motion  to  Advance  Cause. 

[Caption.] 

To  the  Sun  Company  and  the  American  Surety  Company,  or 
to  Their  Solicitors,  E.  E.  Townes,  Esq.,  and  T.  L. 
Foster,  Esq. : 

Please  take  notice  that  the  Vinton  Petroleum  Company 
having  been  advised  that  a  citation  signed  by  Judge  Gordon 
Russell  admonishing  it  to  appear  in  the  United  States  circuit 
court  of  appeals  at  New  Orleans  thirty  days  from  December 
30,  1916,  on,  to-wit,  the  29th  day  of  January,  1917,  to 
answer  and  show  cause  why  the  decree  rendered  in  this  cause 
should  not  be  reversed,  does  hereby  notify  you  that  upon  the 
filing  of  the  transcript  of  record  in  that  court  pursuant  to 
the  citation  on  appeal  it  will  present  a  motion  to  the  court,  of 
which  a  copy  will  be  lodged  with  the  clerk  at  New  Orleans 
for  your  benefit  on  that  date,  petitioning  the  honorable  cir- 
cuit court  of  appeals  to  advance  this  cause  and  summarily 
affirm  the  same  with  ten  per  cent,  damages  for  delay,  as  pre- 
scribed by  the  rules  of  that  court ;  or,  in  the  alternative,  to 
dismiss  said  appeal  with  damages  for  delay  and  costs  of  suit, 


924  SUITS     IN     EQUITY. 

predicated  upon  the  fact  that  the  decree  entered  in  the  court 
below  was  in  strict  compliance  with,  and  in  obedience  to  the 
mandate  of  said  circuit  court  of  appeals  in  an  appeal  hereto- 
fore prosecuted  upon  the  same  state  of  facts  and  upon  the 
same  record  of  evidence  and  bill  and  answer  in  all  respects 
word  for  word  and  letter  for  letter  upon  which  the  said  cir- 
cuit court  of  appeals  heretofore  finally  determined  the  issues 
involved  between  the  complainant  and  the  defendant.  And 
upon  the  further  ground  that  no  proceedings  subsequent  to 
the  return  of  the  mandate  have  taken  place  in  the  court  below 
and  no  new  facts  adduced  other  than  an  agreed,  tabulated 
statement  showing  the  amount  of  oil  which  had  been  run  by 
the  Vinton  Petroleum  Company  to  the  Sun  Company  under 
said  contract,  and  other  than  an  agreement  of  counsel  that 
the  precise  record  of  evidence  taken  upon  the  former  appeal 
should  constitute  the  record  of  evidence  in  this  cause  exclu- 
sively, with  the  exception  as  to  the  amount  of  oil  which  was 
proved  by  the  agreed  statement  aforesaid. 

And  because  of  the  fact  that  you  are  prosecuting  an  appeal 
from  the  decree  without  reasonable  grounds  therefor  and 
upon  the  identical  record  heretofore  reviewed  by  the  United 
States  circuit  court  of  appeals  and  the  United  States  supreme 
court  on  petition  for  certiorari,  we  shall  move  to  obtain  the 
relief  hereinbefore  stated,  of  which  you  are  hereby  now  duly 
advised. 

Vinton  Petroleum  Company, 

By  A.  B.,  Solicitor. 


No.  573a. 

Writ  to  Serve  Copy  of  Notice  to  Advance,  and  Marshal's 

Return  Thereon. 
[Caption.] 
The  President  of  the  United  States,  to  the  Marshal  of  the 
Eastern  District  of  Texas,  Greeting: 
You   are   hereby   commanded   to   serve    Sun   Company,    a 
corporation,  and  American   Surety  Company,  a  corporation, 


NOTICES,      MOTIONS,      ORDERS.     DECREES,      ETC.  925 

or  their  attorneys  of  record,  Messrs.  Townes,  Foster  &  Hard- 
wicke,  residing  at  Beaumont,  in  Jefferson  county,  Texas, 
with  the  accompanying  certified  copy  of  complainant's  notice 
of  motion  to  advance,  filed  January  5,  1917. 

Herein  fail  not,  and  due  return  of  this  writ  make. 
Witness  the  Honorable  Gordon  Russell,  judge  of  the  dis- 
trict court  of  the  United  States  for  the  eastern  district  of 
Texas,  and  the  seal  of  said  court  at  Beaumont  this  5th  day 
of  January,  A.  D.  1917. 

[Seal]  A.  B., 

Clerk  U.  S.  District  Court,  E.  E.  T., 

By  X.  Y.,  Deputy. 
Marshal's  Return. 
Received  this  writ  on  the  5th  day  of  January,  1917,  and 
executed  the  same  on  the  5th  day  of  January,  1917,  by  de- 
livering to  E.  E.  Townes  in  person,  at  Beaumont,  in  my 
district,  the  accompanying  copy  of  paper  named  in  the  within 
writ,  certified  by  the  clerk  of  this  court.  T.  R., 

U.  S.  Marshal,  Eastern  District  of  Texas, 

By  M.  K.,  Deputy. 


No.  574. 

Notice  of  Motion  to  Strike  Out  Parts  of  the  Answer. 

[Caption.] 

Please  take  notice  that  upon  the  complaint  herein  and  the 
answer  of  The  Shubert  Theatrical  Company  (a  New  Jersey 
corporation),  the  undersigned  will  move  this  court  on  Thurs- 
day, the  7th  of  September,  1916,  at  ten  o'clock  in  the  fore- 
noon on  said  day,  or  as  soon  thereafter  as  counsel  can  be 
heard,  for  an  order  directing  the  striking  out  from  said 
answer  of  said  Shubert  Theatrical  Company  (a  New  Jersey 
corporation)  : 

1.  All  that  portion  of  said  answer  designated  "As  and  For 
a  First  Separate  Defense,"  and  constituting  the  paragraphs 
thereof  respectively  designated  as  "Sixth"  to  "Twenty-fifth" 
inclusive. 


926  SUITS     IN     EQUITY. 

2.  All  that  portion  of  said  answer  designated  "As  and  For 
a  Second  Separate  Defense,"  and  constituting  the  paragraphs 
thereof  respectively  designated  as  "Twenty-sixth"  to  "Twenty- 
ninth"  inclusive. 

3.  All  that  portion  of  said  answer  designated  "As  and  For 
a  Third  Separate  Defense,"  and  constituting  the  paragraph 
thereof  designated  as  "Thirtieth."  A.  B., 

Attorney  for  Complainant. 


No.  575. 

Notice  of  Application  for  Trial. 

[Caption.] 

To  Y.  &  Y., 

Attorneys  for  Defendant  [or,  Plaintiff]. 

Please  take  notice  that  on  the day  of ,  1894,  we 

will  apply  to  the  clerk  of  said  court  to  have  the  above  cause 
noted  for  trial  at  the  April  [or  as  may  be]  term  thereof, 
1894.  X.  &  X., 

Attorneys  for  Plaintiff  [or,  Defendant]. 

Service  of  the  above  notice  is  hereby  acknowledged  this 

day  of ,  1894.  Y.  &  Y., 

Attorneys  for  Defendant  [or,  Plaintiff]. 


No.  576. 

Notice  of  Final  Hearing. 
[Caption.'] 

Y.  &  Y., 

Solicitors  for  Defendant. 
Please   take   notice   that   under   the   order   entered   in   the 

above-entitled   cause   on  the  day  of  ,    1894,   said 

cause  will  be  brought  on  for  final  hearing  upon  the  plead- 
ings, proofs,  and  proceedings  herein,  before  the  judges  of 
this  honorable  court,  at  a  stated  term  thereof  to  be  held  at 
,  in  the  city  of ,  on  the day  of  next,  at 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  927 

the  opening  of  the  court  on  that  day,  or  as  soon  thereafter 

as  counsel  can  be  heard.  X.  &  X., 

Dated .  Soh'citors  for  Plaintiff. 

Service,  etc. 


No.  577. 

Motion  for  Severance  on  Appeal. 
[Caption.] 

Now  comes  the  Kansas  City  Gas  Company,  The  Wyandotte 
County  Gas  Company,  Fidelity  Trust  Company  and  The 
Kansas  City  Pipe  Line  Company,  defendants  in  the  above 
entitled  cause,  and  state  and  show  to  the  court  that  they  have 
filed  their  assignments  of  errors  and  petition  for  allowance  of 
appeal  from  the  final  judgment  and  decree  entered  in  the 
above  entitled  cause  on  August  13,  1917;  that  demand  and 
notice  to  join  in  said  appeal  have  been  duly  made  and  served 
upon  each  and  all  of  their  co-defendants ;  that  each  and  all  of 
said  co-defendants  have  failed,  neglected  and  refused  to  join 
in  said  appeal,  and  have  been  duly  notified  to  appear  in  the 
above  entitled  court  and  cause  on  November  5,  1917,  and 
appeal  or  join  in  said  appeal  or  show  cause  why  an  order  of 
severance  should  not  be  made  against  them,  barring  their 
right  to  prosecute  an  appeal  or  appeals  in  the  above  entitled 
cause. 

Wherefore,  The  Kansas  City  Gas  Company,  The  Wyan- 
dotte County  Gas  Company,  Fidelity  Trust  Company  and 
The  Kansas  City  Pipe  Line  Company,  defendants  herein,  pray 
the  court  for  an  order  of  severance  from  all  their  co-defend- 
ants for  the  purposes  of  an  appeal  to  the  supreme  court  of  the 
United  States  from  the  final  judgment  and  decree  entered 
herein  on  August  13,  1917;  and  such  other  and  further  orders 
as  may  be  proper  in  the  premises.  A.  B., 

Solicitor. 


928  SUITS    IN     EQUITY. 

No.  578. 

Motion  on  Special  Appearance  to  Quash  Subpoena. 

[Caption.] 

Now  comes  Kansas  City,  Missouri,  appearing  especially 
for  the  purposes  of  this  motion  only,  and  moves  the  court 
to  quash  the  writ  of  subpoena  issued  upon  the  bill  of  com- 
plaint in  the  above  entitled  cause  against  it,  and  vacate  and 
set  aside  the  return  of  service  of  said  writ  on  Kansas  City, 
Missouri,  for  the  following  reasons : 

Because  Kansas  City,  Missouri,  is,  and  was  at  the  time 
said  subpoena  was  issued  and  served,  a  municipal  corporation 
duly  organized  and  existing  under  and  by  virtue  of  the  con- 
stitution and  laws  of  the  state  of  Missouri,  and  is  a  govern- 
mental agency  of  the  state  of  Missouri. 

Because  Kansas  City,  Missouri,  is,  and  was  at  the  time 
said  subpoena  was  issued  and  served,  a  citizen  and  resident 
of  the  district  of  Missouri,  western  division,  and  not  a  citizen 
or  resident  of  the  district  of  Kansas. 

Because  said  subpoena  was  served  upon  Kansas  City,  Mis- 
souri, as  shown  by  the  marshal's  return,  outside  of  the  dis- 
trict of  Kansas  and  in  Jackson  county,  state  of  Missouri,  and 
is  and  was  not  a  valid  and  legal  service  of  process  upon  Kan- 
sas City,  Missouri,  in  the  above  entitled  cause,  and  this  court 
has  not  jurisdiction  of  the  defendant,  Kansas  City,  Missouri. 

A.  B., 
Attorney  for  Defendant,  Kansas  City. 


No.  579. 

Motion  by  Defendant  That  the  Defenses  in  Point  of  Law  be 
Separately  Heard  and  Disposed  of  before  the  Trial,  and 
to  Dismiss  the  Bill  as  to  Defendant. 

[Caption.] 

Now  comes  Kansas  City,  Missouri,  one  of  the  defendants 
in  the  above  entitled  suit,  and  respectfully  shows  to  the  court 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  929 

that  in  its  answer  filed  herein  to  the  bill  of  complaint  it 
pleaded  defenses  in  point  of  law  arising  upon  the  face  of  the 
bill  as  follows: 

(a)  Misjoinder  of  parties; 

(b)  Misjoinder  of  causes  of  action  whereby  the  bill  is 
multifarious ; 

(c)  Insufficiency  of  fact  to  constitute  a  valid  cause  of  ac- 
tion in  equity  against  Kansas  City,  Missouri. 

(d)  That  the  court  is  without  jurisdiction  of  the  defend- 
ant, Kansas  City,  in  this  suit,  for  the  reason  that  the  process 
served  upon  it  herein  was  not  authorized  by  law  and  no 
process  has  been  authorized  by  law  by  which  this  court  may 
acquire  jurisdiction  of  the  defendant,  Kansas  City,  in  this 
suit; 

(e)  That  the  plaintiff  is  not  without  adequate  remedy  in 
the  due  course  of  law  and  his  bill  fails  to  show  cause  for 
equitable  relief  against  Kansas  City,  Missouri. 

Wherefore,  this  defendant,  Kansas  City,  Missouri,  prays 
the  court  to  separately  hear  and  dispose  of  its  said  defenses 
before  the  trial  of  the  principal  case  and  to  dismiss  this  suit 
as  to  this  defendant  and  that  it  may  have  judgment  for  its 
costs  expended  and  incurred  in  this  suit.  A.  B., 

Solicitor  for  Kansas  City,  Missouri,  Defendant, 

Of  Counsel. 


No.  580. 

Motion  to  make  New  Parties  Defendant,  for  Personal  Service 
on  Absent  Defendants,  and  Affidavit  of  Solicitor. 

Now  comes  the  plaintiff,  Frances  H.  Williamson,  by  Mur- 
ray Seasongood,  her  solicitor,  and  represents  to  the  court 
that  one  or  more  of  the  defendants  are  not  inhabitants  of  or 
found  within  this  district  and  have  not  voluntarily  appeared 
in  this  action;  and  further,  that  there  are  additional  persons 
having  or  claiming  an  interest  in  certain  of  the  bonds  referred 
to  in  the  bill  and  supplemental  bill  of  complaint,  and  that  the 


930  SUITS     IN     EQUITY. 

receiver  heretofore  appointed  by  the  court  should  also  be 
made  a  party  to  this  cause,  all  of  which  is  made  to  appear 
more  fully  in  the  affidavit  of  Murray  Seasongood  accompany- 
ing this  motion. 

Wherefore,  plaintiff  prays  that  the  court  make  an  order 
making  such  as  are  not  already  defendants  parties  to  this 
cause;  directing  such  absent  defendants  to  appear  and  plead 
by  a  day  certain  to  be  designated  and  that  such  order  may  be 
served  on  such  absent  defendants,  if  practicable,  wherever 
found,  and  also  upon  the  receiver  in  possession  or  charge  of 
said  property.  M.  S., 

Solicitor  for  Plaintiff. 

Affidavit   of  Solicitor. 

State  of  Ohio,  Hamilton  County,  ss : 

Murray  Seasongood,  being  first  duly  sworn,  deposes  and 
says  that  he  is  the  solicitor  for  the  plaintiff;  that  he  has 
made  diligent  effort  to  induce  the  various  parties  defendant 
named  in  the  order  made  by  the  court  December  30,  1913, 
to  enter  their  appearance  voluntarily  and  to  serve  subpoena 
and  copy  of  the  injunction  order  on  such  as  did  not  enter 
their  appearance  voluntarily;  that  the  following  defendants 
are  not  inhabitants  of  and  can  not  be  found  within  this  dis- 
trict and  have  not  voluntarily  appeared  herein,  although 
affiant  mailed  to  such  persons  by  registered  mail  the  order  of 
the  court"  made  December  30,  1913,  together  with  a  waiver 
of  subpoena  with  request  that  the  same  be  signed  and  re- 
turned, namely : 

Joseph  E.  Beury,  of  MacDonald,  W.  Va. 
P.  H.  Kelly,  of  Thurmond,  W.  Va. 
Edwin  Mann,  of  Bluefield,  W.  Va. 

Affiant  further  states  that  he  is  informed  and  believes  that 
C.  W.  Summers,  of  Cleveland,  Ohio ;  Amherst  German  Bank 
Company,  a  corporation,  of  Amherst,  Ohio,  and  Walpole 
Rubber  Company,  a  corporation,  of  Walpole,  Mass.,  have  or 


NOTICES,      MOTIONS,     ORDERS,     DECREES,     ETC.  931 

claim  some  interest  in  certain  of  the  bonds  referred  to  in  this 
suit  and  that  they  can  not  be  served  with  process  in  this  dis- 
trict; that  the  location  of  the  real  and  personal  property  in- 
volved in  this  proceeding  is  as  stated  in  the  bill  and  supple- 
mental bill  of  complaint  except  that  the  office  of  said  com- 
pany has  been  transferred  to  the  Union  Central  Life  Insur- 
ance Building,  Cincinnati,  Ohio,  and  that  Guy  W.  Mallon, 
of  Cincinnati,  Ohio,  as  receiver,  is  in  charge  of  said  office 
and  the  real  and  personal  property  of  the  defendant,  The 
Superior  Portland  Cement  Company. 

Affiant  further  states  that  he  believes  process  can  be  served 
on  each  of  the  above  defendants  personally  at  the  above  ad- 
dresses. M.  S.,  Solicitor. 

[Duly  verified.] 


No.  581. 

Order  Making  New  Parties  Defendant,  Authorizing  Servicei 
on  Absent  ( 1 )  Defendants,  etc. 

On  motion  of  plaintiff.  Frances  H.  Williamson,  and  the 
affidavit  of  her  solicitor  in  support  thereof,  filed  this  day,  and 
it  appearing  that  the  following  persons  and  companies,  not 
heretofore  made  defendants,  have  or  claim  some  interest  in 
the  bonds  referred  to  in  this  suit,  namely,  C.  \V.  Summers, 
of  Cleveland,  Ohio;  Amherst  German  Bank  Company,  a  cor- 
poration, of  Amherst,  Ohio;  Walpole  Rubber  Company,  a 
corporation,  of  Walpole,  Massachusetts,  it  is  now  ordered  that 
each  of  the  foregoing  persons  and  companies  be  and  they 
hereby  are  made  parties  defendant  to  this  action. 

It  further  appearing  that  the  foregoing  persons  and  com- 
panies and  the  defendants,  Joseph  B.  Beury,  of  MacDonald, 
West  Virginia;  P.  H.  Kelly,  of  Thurmond,  West  Virginia, 
and  Edwin  Mann,  of  Bluefield,  West  Virginia,  are  not  in- 
habitants of  or  found  within  this  district  and  have  not  volun- 
tarily appeared  herein,  it  is  ordered  that  each  of  such  absent 
defendants,  persons  and  companies,  appear  and  answer  the 
bill  and  supplemental  bill,  on  or  before  the  2nd  day  of  March, 


932  SUITS     IN     EQUITY. 

1914;  that  each  and  all  of  them  be  required  to  disclose  which 
of  the  bonds  of  The  Superior  Portland  Cement  Company 
they  now  hold  or  have  an  interest  in,  from  whom  and  when 
they  obtained  said  bonds  and  what  they  claim  with  respect  to 
said  bonds;  that  pending  the  determination  of  the  status  of 
said  bonds  in  the  hands  of  the  various  holders  thereof,  and 
until  the  further  order  of  the  court  all  of  the  above  parties, 
their  officers,  agents,  attorneys  and  employes  and  all  persons 
whatsoever,  be  enjoined  from  selling,  transferring,  pledging 
or  otherwise  disposing  of  any  of  the  bonds  held  by  them; 
that  a  copy  of  this  order  shall  be  served  on  each  of  such 
absent  defendants,  if  practicable,  wherever  found  by  the  mar- 
shal of  the  district  where  they  may  reside  or  be  found. 

It  further  appearing  that  Guy  W.  Mallon  as  receiver  is  in 
possession  or  charge  of  the  property  of  defendant.  The  Supe- 
rior Portland  Cement  Company,  it  is  ordered  that  he  be  and 
he  is  hereby  made  a  party  defendant  to  this  cause  with  leave 
to  plead  herein.  X.  Y.,  Judge. 

(1)  In  this  case  the  plaintiflF  is  both  a  stockholder  of  the  corpora- 
tion and  a  holder  of  its  bonds  secured  by  trust  deed.  An  assignment 
of  the  corporate  property  had  been  made  to  coerce  bondholders  into 
surrendering  their  bonds,  and  a  receiver  had  been  placed  in  charge  of 
the  property.  This  suit  is  brought  in  the  district  where  the  property 
is  located  to  set  aside  the  assignment  and  to  establish  the  validity  of 
the  bonds,  and  the  question  of  interest  here  is  the  matter  of  service 
upon  persons  beyond  the  jurisdiction  and  making  them  parties. 

The  motion,  affidavit  and  order  here  reach  parties  in  another  state, 
and  the  question  is  under  what  circumstances  may  substitute  process 
be  had  in  adding  parties  to  be  aflfected  by  the  judgment. 

The  pleadings  here  arise  under  the  provisions  of  Equity  Rule  37 
and  Judicial  Code,  Sec.  57.  Equity  Rule  Zl  gives  wide  liberty  in  the 
matter  of  joining  and  adding  parties.  Section  57  deals  with  the  case 
in  which  a  suit  is  brought  to  remove  or  enforce  a  lien  or  claim  on 
property  in  the  district  of  the  forum,  where  parties  interested  as  de- 
fendants reside  in  other  districts.  Very  few  cases  since  the  adoption 
of  this  rule  refer  to  it  in  this  connection. 

In  TuUy  v.  Triangle  Film  Corporation,  229  Fed.  297,  it  is  said,  at 
pages  298  and  299,  that  the  "interest"  mentioned  in  this  rule  is  "an 
interest  in  law.  It  can  not  mean  anything  else,  and  certainly  can  not 
mean  a  possible  injury  for  which  a  person  has  not  retained  for  himself 
any  right  or  redress." 


NOTICES,      MOTIONS,     ORDERS,     DECREES,      ETC.  933 

So  the  court  found  misjoinder  of  parties  plaintiff  in  that  a  licensee 
to  produce  a  play  "upon  the  stage  by  a  company  of  players"  was  not 
a  party  in  interest  in  a  suit  by  the  author  against  a  party  who  was 
producing  a  motion  picture  thereof,  inasmuch  as  such  right  was 
retained  by  the  author  and  was  in  no  respect  granted  to  the  licensee. 
In  Ex  parte  Equitable  Trust  Co.,  231  Fed.  571,  at  page  592,  the 
court  says:  "It  is  argued  that  Equity  Rule  37  gave  to  the  court  power 
to  order  that  Denver  be  made  a  party.  It  provides  that  'any  person 
may  at  any  time  be  made  a  party  if  his  presence  is  necessary  or  proper 
to  a  complete  determination  of  the  cause-'  Having  shown  that  Denver 
was  not  a  necessary  or  proper  party  to  the  cause  before  the  court,  the 
rule  is  inapplicable." 

But  the  rule  merely  embodies  principles  well  settled  in   the  law. 

See  Simkin's  A  Federal  Equity  Suit,  pp.  224  et  seq. 

In  reference  to  Judicial  Code,  Sec.  57,  there  have  been  many  ad- 
judications: this  section  codifies  the  statute  of  March  3,  1875,  which 
itself  modified  the  previously  existing  statutory  law,  and  therefore 
decisions  on  the  older  statutes  are  material  in  consideration  of  the 
present  code.  Sec.  57. 

In  Hudson  Navigation  Co  .v.  Murray,  233  Fed.  466,  a  motion  was 
made  to  vacate  an  order  directing  defendant,  a  non-resident  of  the 
district  in  which  suit  is  brought,  to  appear  and  plead,  and  also  to  set 
aside  the  substituted  service  made  upon  them. 

Here  the  bill  alleged:  (1)  plaintiff  is  a  New  Jersey  corporation; 
(2)  shares  of  stock  fraudulently  issued  to  defendant,  a  citizen  of  New 
York;  (3)  stock  certificate  now  in  New  Jersey. 

The  prayer  asked  that  (1)  stock  be  decreed  void;  (2)  defendant  be 
required  to  surrender  the  certificates;  (3)  plaintiff  be  authorized  to 
cancel  them. 

Held  presence  of  certificates  of  stock  is  immaterial. 

"The  important  question  is  whether  the  property  upon  the  title  to 
which,  it  is  alleged,  the  invalid  issue  of  stock  creates  a  cloud,  is  within 
this  district." 

And  at  page  469  it  is  said:  "Illegal  stock  probably  does  cast  a  cloud 
upon  the  equitable  title  or  the  interest  which  the  genuine  stockholders 
have,  by  virtue  of  their  shares  of  stock,  not  in  the  stock,  but  in  the 
property  of  the  corporation,  since  it  impairs  that  title  or  interest. 
*  *  *  The  statute  makes  the  location  of  the  property  the  decisive 
factor." 

So  no  substituted  service  in  accordance  with  Judicial  Code,  Sec.  57, 
was  permissible,  because  the  property  beclouded  was  not  located  in 
New  Jersey. 

In  Murphy  v.  Ford  Motor  Co.,  241  Fed.  134,  a  trustee  in  bank- 
ruptcy sued  in  the  district  court  in  Ohio  to  set  aside  an  alleged  prefer- 
ence, which  consisted  of  the  assignment  of  a  debt  by  the  bankrupt 
to  a  creditor.  The  debtor  and  creditor  were  inhabitants  of  other 
states.  In  the  suit  substituted  service  was  sought  on  both  the  creditor 
and  debtor,  who  were  named  as  parties  defendant.    The  suit  was  to  set 


934  SUITS     IN     EQUITY. 

aside  the  claim  of  the  creditor  assignee  and  to  establish  the  claim  of 
the  bankrupt  (trustee);  but  the  money  in  question  was  not  in  the  dis- 
trict, and  an  offer  by  the  debtor  to  pay  into  court  when  it  should  be 
decided  which  was  the  lawful  claimant  thereto  did  not  put  the  money 
into  the  possession  of  the  court,  and  therefore  the  property  sought 
to  be  affected  by  this  suit  was  not  within  the  district  of  suit. 

In  Babcock  Lumber  &  Land  Co.  v.  Ferguson,  243  Fed.  623,  at 
page  628,  the  court  says  that  where  substituted  service  was  had  in 
accordance  with  Section  57,  and  subpoena  served  upon  him,  the  de- 
fendant who  fails  to  appear  and  plead  is  bound  by  the  judgment. 

In  Hudson  Nav.  Co.  v.  Murray,  236  Fed.  419,  the  suit  was  brought  in 
chancery  in  state  court  and  substituted  service  was  had  in  accordance 
with  state  statutes;  defendant  appeared  for  the  purpose  of  removing  to 
the  federal  court,  and  in  the  federal  court  made  a  motion  to  set  aside 
the  substituted  service.  But  as  the  state  court  had  acquired  service  in 
accordance  with  the  state  law,  which  was  not  repugnant  to  any  federal 
rule  or  law,  although  not  in  the  manner  distinctly  authorized  by  federal 
substitute  service  statutes,  the  federal  court  would  recognize  its  valid- 
ity in  the  proceedings  after  removal. 

In  this  case  a  judgment  could  validly  have  been  rendered  by  the 
state  court  on  the  case  as  it  was  when  removed. 

In  O'Neil  v.  Birdseye,  244  Fed.  254,  257,  the  suit  was  brought  in  a 
district  of  which  neither  party  was  a  resident,  and  the  relief  prayed 
required  personal  judgment  against  the  defendant;  and  although  Sec- 
tion 57  permitted  substituted  service  on  defendant  for  the  purposes  of 
the  judgment  in  rem,  yet  it  conferred  no  jurisdiction  to  decree  a  judg- 
ment in  personam,  and  the  suit  could  not  therefore  have  been  originally 
brought  in  the  federal  court,  henCe  can  not  be  removed  thereto  and 
was  hence  remanded.  The  court  regards  the  bill  as  a  whole  in  deter- 
mining whether  its  requirements  are  satisfied  by  a  judgment  in  rem. 

In  Albert  v.  Bascom,  245  Fed.  149,  a  bill  was  brought  by  a  creditor 
to  enforce  a  lien  against  land  of  the  debtor  held  by  the  heirs  of  the 
debtor,  the  plaintiff  and  heirs  being  residents  of  other  states  than  the 
one  in  which  the  land  was  located.  The  suit  was  dismissed  because 
the  lien  must  be  a  pre-existing  one  which  it  is  the  purpose  of  the  suit 
to  enforce,  whereas  here  the  purpose  was  to  have  a  lien  created  by 
suit. 

In  Perez  v.  Fernandez,  220  U.  S.  224,  are  set  forth  the  necessary 
steps  to  be  pursued  by  party  defendant  where  there  was  publication, 
but  not  personal  notice,  in  opening  up  the  case  within  a  year,  and  also 
what  the  record  should  show.  This  case  deals  with  Section  8  of  act 
of  March  3,  1875,  which  has  been  codified  in  Section  57  of  the  Judicial 
Code. 

See  Simkins'  A  Federal  Equity  Suit,  3d  ed.,  pp.  224  et  seq.  and 
336  et  seq. 


NOTICES,      MOTIONS,     ORDERS,     DECREES,     ETC.  935 

No.  582. 

Motion  to   Dismiss(l)    for  Insufficient   Facts   and   for   Non- 
joinder of  Plaintiffs  and  Defendants. 
[Caption.] 

Comes  now  the  defendant,  Twin  Falls  Salmon  River  Land 
and  Water  Company,  and  moves  the  court  to  dismiss  the 
amended  bill  of  complaint  herein  upon  the  following  grounds : 

1.  That  the  amended  bill  of  complaint  does  not  state  facts 
sufficient  to  entitle  the  plaintiff  to  any  relief,  there  being  no 
equity  stated  in  the  amended  bill. 

2.  That-  there  is  a  non-joinder  of  necessary  parties  plaintiff 
in  that  all  of  the  persons  interested  in  the  subject-matter  of 
the  controversy  and  who  may  be  interested  with  the  plaintiffs 
are  not  joined  as  plaintiffs  in  the  action. 

3".  That  there  is  a  non-joinder  of  necessary  parties  in  that 
all  of  the  persons  adversely  interested  to  the  plaintiff  are  not 
made  defendants. 

Wherefore  said  defendant  prays  that  the  amended  bill  of 
complaint  herein  may  be  dismissed.  S.  H.  H.< 

Attorney  for  Defendant. 

(1)  See  Equity  Rule  29,  the  motion  now  being  used  to  perform  the 
office  of  the  demurrer  under  the  former  system. 


No.  583. 

Motion  for  Leave  to  File  Bill  in  Equity  in  the  Supreme  Court 
of  the  United  States. 

The  State  of , 

Complainant, 
vs.  } 

The  State  of , 

Defendant. 

To  the  Honorable  the  Chief  Justice  and  the  Associate  Justices 
of  the  Supreme  Court  of  the  United  States : 
Comes  now  the  complainant,  the  State  of  X.,  by  its  attor- 
ney general,  M.  R.,  and  presenting  herewith  its  bill  of  corn- 


No. . 

In  Equity. 


936  SUITS     IN     EQUITY. 

plaint  in  the  above  entitled  cause,  respectfully  moves  the  court 
upon  the  facts  therein  stated  for  leave  to  file  the  same  in  this 
court  under  its  original  jurisdiction,  as  provided  by  Article 
III,  Section  2  of  the  Constitution  of  the  United  States,  and 
to  prosecute  said  action  in  this  honorable  court. 

The  State  of  X., 
By  M.  R.,  Attorney  General. 


No.  584. 

Motion  for  Preliminary  Injunction. 

In  the  Supreme  Court  of  the  United  States, 
Sitting  in  Equity, 

No.  ,  Term,  1919, 

The  Commonwealth  of  Pennsylvania,  Complainant, 

vs. 
The  State  of  West  Virginia,   Defendant, 

(Upon  request  to  file  a  bill.) 

If  this  court,  in  accordance  with  the  motion  made  on  May 
5th,  instant,  orders  filed  the  bill  of  complaint  in  the  above- 
stated  suit,  then  complainant  prays  that,  pending  adjudication 
by  this  court  on  the  prayers  of  said  complaint,  the  enforce- 
ment of  the  statute  in  controversy  be  enjoined,  since  the 
operation  thereof  will  prohibit  the  transportation  of  natural 
gas  from  West  Virginia  into  this  commonwealth,  and  will : 

1.  Etc.  [here  follow  effects  of  the  operation  of  the  statute], 
and  to  avoid  these  calamities  pending  adjudication  complain- 
ant prays  that  a  preliminary  injunction  issue,  as  prayed  for 
in  said  bill  of  complaint,  to  enjoin  the  enforcement  of  said 
statute  until  after  this  court  shall  have  decided  whether  or 
not  said  statute  shall  go  into  effect. 

Complainant  has  filed  in  support  of  this  motion  certain 
affidavits  and^  refers  to  the  averments  of  said  bill  of  com- 
plaint and  the  resolution  of  the  legislature. 


NOTICES,      MOTIONS,     ORDERS,     DECREES,     ETC.  937 

Copies  of  the  bill  of  complaint,  motion  for  leave  to  file  the 
same,  and  the  memorandum  brief  in  support  of  said  motion, 
copies  of  this  motion  for  a  preliminary  injunction,  and  of 
the  affidavits  in  support  thereof,  have  been  served  upon  the 
governor  and  attorney  general  of  the  state  of  West  Virginia 
on  May  9th,  instant ;  also  notice  that  this  motion  for  prelimi- 
nary injunction  and  said  supporting  affidavits  will  be  pre- 
sented to  this  court  on  May  19th,  instant. 

COMMONW^EALTH    OF    PENNSYLVANIA, 

By  P.  D.,  Attorney  General. 
A.  B.  and  C.  D.,  of  Counsel. 


No.  585. 

Motion  Suggesting  Appointment  of  New  District  Attorney  and 
Asking  His  Substitution  in  the  Case. 

[Caption.] 

Now  comes  Stuart  R.  Bolin.  attorney  at  law  of  Columbus, 
Ohio,  and  respectfully  represents  to  your  honorable  court  that 
on  the  5th  day  of  June,  1915,  he  was  duly  and  regularly 
commissioned  by  Woodrow  Wilson,  as  President  of  the 
United  States  of  America,  as  United  States  attorney  for  the 
southern  district  of  Ohio  for  the  unexpired  term  of  Sherman 
T.  McPherson,  resigned. 

Wherefore  said  Stuart  R.  Bolin,  respectfully  moves  the 
court  to  instruct  the  clerk  that  he  be  substituted  as  attorney 
of  record  for  the  plaintiff  in  the  above  entitled  cause  of  action. 

Stuart  R.  Bolin, 
United  States  Attorney. 


No.  586. 

Motion  for  Additional  Security  for  Costs. 
[Caption.] 

Now  comes  the  defendant  and  moves  the  court  for  an 
order  requiring  the  plaintiff  to  file  a  bond  as  security  for 
costs  herein.  Y.  &  Y., 

Solicitors  for  Defendant. 


938 


SUITS     IN     EQUITY. 


No.  587. 
Cost  Bond. 

For  form  of  bond,  see  No.  . 


No.  588. 

Appearance. 

For   form   for  appearance,   consult   Nos.  .      See   also 

rule  in  equity. 


No.  589. 

Order  Associating  Counsel  for  the  Defendant. 

[Caption.] 

Now  comes  defendant,  the  C.  &  D.  Railway  Company,  by 
R.  Y.,  its  counsel,  and  states  to  the  court,  on  the  hearing 
herein,  that  F.  L.  has  been  associated  by  said  defendant  as 
one  of  its  counsel  in  this  cause,  and  moves  that  the  proper 
entry  be  made  thereon.  It  is  ordered  that  the  clerk  of  the 
court  make  minute  of  the  same,  and  that  said  F,  L.  is  so 
associated  of  record  as  of  counsel  to  said  defendant  in  this 
cause. 


No.  590. 

Order  to  Take  Bill  Pro  Confesso.(l) 

[Caption.'} 

The  subpoena  in  the  above  entitled  cause  having  been  re- 
turned, which  return  has  been  filed,  and  it  appearing  there- 
from that  the  said  subpoena  was  duly  served  on  C.  D.,  the 
defendant  herein,  and  no  appearance  having  been  entered  on 
the  part  of  said  defendant,  or  demurrer,  or  plea,  or  answer 
filed,  although  such  appearance  should  have  been  entered  or 

pleading  filed  on  or  before  the  day  of ;  therefore. 

on  motion  of  R.  X.,  solicitor  for  the  plaintiff,  it  is  ordered 


NOTICES,      MOTIONS,     ORDERS,     DECREES,      ETC.  939 

and  decreed  that  the  bill  herein  be  taken  pro  confesso  as  to 
said  defendant 

Dated . 

(1)  See  Equity  Rule  16;  Austin  v.  Riley,  55  Fed.  833. 


No.  591. 

Consent  to  Take  Bill  Pro  Confesso. 

[Caption.] 

Whereas  the  bill  in  equity  in  the  above  entitled  cause  was 

filed  in  this  court  on  the  day  of ,  and  a  subpoena 

issued  and  duly  served  on  me  in  this  cause  as  required  by 
law  [or,  I  hereby  waive  service  of  subpoena  and  enter  my 
appearance  herein],  and  I  do  not  desire  to  defend  said  ac- 
tion; therefore  I  hereby  consent  that  the  said  bill  be  taken 
pro  confesso,  and  I  hereby  admit  [state  admission]  as  charged 
in  said  bill  [and  I  hereby  consent  that  said  injunction  may 
issue  in  said  action  out  of  this  court  as  prayed  for  in  said  bill 
without  any  further  proof  being  made  or  given  in  said  ac- 
tion], and  the  plaintiff  may  attach  this  stipulation  and  con- 
fession to  the  said  bill,  and  the  same  to  be  binding  and  con- 
clusive upon  me,  this  defendant.  C.  D. 


No.  592. 

Decree  Pro  Confesso.(l) 

[Caption.] 

It  appearing  to   the  court  that  the  bill   in   equity   in  the 

above  entitled  cause  was  filed  in  this  court  on  the  day 

of  ,   1894,  and   that   a  subpoena   was   issued   and   duly 

served  on  the  defendant  herein ;  that  no  appearance  has  been 
entered  on  the  part  of  the  defendant,  or  motion  or  answer 
filed,  and  that  an  order  taking  the  said  bill  pro  confesso  was 

duly  entered  on  the day  of in  the  order-book,  and 

that  no  proceedings  have  been  had  or  taken  by  said  defend- 
ant since  such  order  was  entered ;  now,  therefore,  more  than 


940  SUITS     IN     EQUITY. 

thirty  days  after  entering  said  order  as  aforesaid,  to-wit,  on 

the  day  of  ,  it  is  hereby  ordered,  adjudged  and 

decreed  [insert  the  finding  of  the  court]. 

(1)  A  decree  taken  pro  confesso  does  not  become  absolute  until  the 
next  term  of  court.  See  Equity  Rule  17;  Thompson  v.  Wooster,  114 
U.  S.  104,  29  L.  ed.  107. 


No.  593. 

Decree  Pro  Confesso  Sustaining  Patent. 
See  under  title  "Patents." 


No.  594. 

(l)Motion  to  Vacate  a  Decree  Pro  Confesso. 

[Caption.] 

In  this  cause  the  defendant,  C.  D.,  comes,  by  his  solicitors, 
and  moves  the  court  to  set  aside  the  decree  pro  confesso  en- 
tered herein  against  him  on  . 

First.  Because  said  decree  pro  confesso  was  taken  without 
service  of  process  on  said  C.  D. 

Second.  Because  a  motion  had  been  filed  by  said  C.  D. 
through  his  solicitors  to  the  dependent  foreclosure  bill  filed 
against  said  C.  D.  and  others  in  this  cause,  and  said  motion 
has  never  been  heard  by  the  judges  of  this  court,  or  any 
action  taken  thereon.  Y.  &  Y., 

Solicitors  for  C.  D. 

(1)   Equity  Rule  17. 


No.  595. 

Order  Vacating  a  Decree  Pro  Confesso.  (1) 

[Caption.] 

The  motion  of  the  defendant,  C.  D.,  to  the  bill  of  A.  B., 
to  set  aside  the  decree  pro  confesso  entered  against  him  on 
the  day  of  ,  is  on  argument  and  consideration  al- 
lowed, and  it  is  ordered  that  the  decree  pro  confesso  be  set 
aside,  and  the  case  stand  as  before  said  erroneous  entry. 

(1)  Equity  Rule  17. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  941 

No.  596. 

Order  for  Attachment  to  Compel  Answer.  (1) 

[Caption.] 

The  subpoena  issued  in  the  above  cause  having  been  re- 
turned, which  return  has  been  filed,  and  it  appearing  there- 
from that  the  said  subpoena  was  duly,  served  on  C  D,,  the 
defendant  herein,  and  no  appearance  having  been  entered  on 
the  part  of  the  said  defendant,  therefore,  on  motion  of  R.  X., 
solicitor  for  the  plaintifif,  it  is  ordered  and  decreed  that  an 
attachment  issue  against  the  said  C.  D. 

(1)  See  Equity  Rule  58  concerning  answers  to  interrogatories. 


No.  597. 

Attachment  to  Compel  Ansv7er.(l) 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the District  of ,  Greeting: 

You  are  hereby  commanded  that  you  attach  C.  D.,  if  he 
may  be  found  in  your  district,  and  bring  him  forthwith  [or, 

on  the day  of ,  etc.]  personally  before  the  judge  of 

the  district  court  of  the  United  States  for  the  district 

of ,  in  the circuit,  held  at  [name  place  of  holding 

court],  in  the  city  of ,  in  the  said  district,  to  answer  for 

certain  contempts  in  not  obeying  our  writ  of  subpoena  to  him 
directed,  and  on  him  duly  served,  commanding  him  to  appear 
before  the  said  district  court,  in  equity,  on  the  [as  in  sub- 
poena], to  answer  a  bill  of  complaint  exhibited  against  him 
in  the  said  court  by  A.  B.,  and  further  to  perform  and  abide 
such  order  as  our  said  court  shall  make  in  this  behalf;  and 
you  are  further  commanded  to  detain  him  in  your  custody 
until  he  shall  be  discharged  by  the  said  court. 

And  have  you  then  and  there  this  writ. 

[Add  teste.] 

(1)  See  Equity  Rule  58. 


942  SUITS     IN     EQUITY. 

No.  598. 

Praecipe  for  Copy, 
[Caption.] 

B.  R.,  Clerk  of  said  Court. 

Please  prepare  a  certified  copy  of  the  bill  of  complaint  [or, 
answer,  or  other  paper,  as  may  be,  naming  it]  herein. 

X.  &  Y., 
Attorneys  for . 


No.  599. 

Order  to  Stand  Over  to  Add  New  Parties. 

[Caption.] 

This  cause  coming  on  to  be  heard  this  day  of , 

and  counsel  for  the  respective  parties  having  been  heard,  and 
it  appearing  to  the  court  that  E.  F.  and  G.  H.  are  necessary 
parties  to  this  cause,  it  is  ordered  that  this  cause  do  stand 
over,  to  the  end  that  the  plaintiff  may  make  the  said  E.  F. 
and  G.  H.  parties  thereto,  either  by  amendment  or  supple- 
mental bill,  as  he  may  be  advised. 


No.  600. 

Order  to  Stand  Over  to  Supply  Proofs. 

[Caption.] 

This  cause  coming  on  to  be  heard  this  day  of , 

and  counsel  for  the  respective  parties  having  been  heard, 
and  it  appearing  to  the  court  that  the  plaintiff  has  omitted 
to  introduce  proof  of  [here  state  the  substance  of  what  is 
omitted],  it  is  ordered  that  this  cause  stand  over,  to  the  end 
that  the  plaintiff  may  examine  witnesses  to  prove  [state  what 
plaintiff  has  leave  to  prove]. 


NOTICES,      MOTIONS,     ORDERS,     DECREES,      ETC.  943 

No.  601. 

Petition  by  Infant  for  Appointment  of  a  Guardian  ad  Litem. 

[Caption  and  address.] 

The  petition  of  C.   D.,  of  ,  the    [or,  a]    defendant  in 

this  suit,  respectfully  shows  that  your  petitioner  is  an  infant 
over  the  age  of  fourteen  years,  to-wit,  of  the  age  of  fifteen 
years  and  upwards ;  that  tiJie  bill  in  this  cause  was  filed  against 
your  petitioner  [and  others]  for  the  foreclosure  of  a  mort- 
gage alleged  to  have  been  executed  by  the  father  of  your 
petitioner  (who  is  now  deceased)  in  his  lifetime,  to  the  plain- 
tiff, and  praying  for  a  sale  of  the  mortgaged  premises.  And 
your  petitioner  further  shows  that  she  claims  an  interest  in 
the  said  mortgaged  premises  as  heir  at  law  of  her  father ;  and 
that  she  has  been  served  with  a  subpoena  in  said  cause,  re- 
quiring her  to  appear  and  answer  the  said  bill,  returnable  on 
the day  of ,  instant. 

Your  petitioner  therefore  prays  that  L.  M.,  a  solicitor  of 

this  court,  residing  in  ,  may  be  appointed  the  guardian 

ad  litem  of  your  petitioner,  to  appear  and  defend  this  suit  on 
her  behalf. 


No.  602. 

petition  by  Plaintiff  for  Appointment  of  Guardian  ad  Litem  for 
an  Infant  Defendant. 

[Commence  as  in  preceding  form.] 

The  petition  of  A.  B.,  the  plaintiff  in  this  suit,  respectfully 
shows  that  the  bill  in  this  suit  was  filed  against  the  defendant 
to  foreclose  a  mortgage  executed  by  the  father  of  said  de- 
fendant (who  is  now  deceased)  in  his  lifetime,  to  your  peti- 
tioner, and  praying  for  a  sale  of  the  mortgaged  premises; 
and  that  the  said  defendant  claims  an  interest  in  the  said 
premises  as  heir  at  law  of  her  father.     And  your  petitioner 

further  shows  that  the  said  C.  D.  resides  in  ,  and  is,  as 

he  is  informed  and  believes,  an  infant  over  the  age  of  four- 


944  SUITS     IN     EQUITY. 

teen  years,  to-wit,  of  the  age  of  fifteen  years  and  upwards. 

And  that  on  the  day  of  ,  a  subpoena  in  this  cause 

was  duly  served  on  the  said  C.  D.,  requiring  her  to  appear  to 

and  answer  the  said  bill,  returnable  on  the day  of , 

last.  And  your  petitioner  further  shows  that  although  more 
than  days  have  elapsed  since  the  appearance  day  men- 
tioned in  said  subpoena,  no  guardian  ad  litem  has  as  yet  been 
appointed  for  such  infant,  or  applied  for  by  her  or  any  person 
on  her  behalf,  to  the  knowledge  or  belief  of  your  petitioner. 

Your  petitioner  therefore  prays  that  L.  M.,  the  register  of 
this  court,  may  be  appointed  guardian  ad  litem  of  such  infant 
defendant,  to  appear  and  defend  this  suit  in  her  behalf. 


No.  603. 

Petition  for  the  Appointment  of  a  Guardian  at  Litem.    Notice 
and  Consent  to  Such  Appointment. 

[Caption.] 

To  the  Judge  of  the  District  Court  of  the  United  States  for 
the  District  of  ,  Division. 

Your  petitioner,  R.  S.,  would  respectfully  represent  to  the 
court  that  S.  B.,  one  of  the  above-named  defendants,  is  a 
minor,  under  the  age  of  twenty-one  years,  as  your  petitioner 
is  informed  and  verily  believes. 

Your  petitioner  further  represents  that  said  S.  B.  is  a  resi- 
dent of  said district  of ,  and  that  it  is  necessary  that 

a  guardian  of  the  person  and  estate  of  said  minor  be  appointed 
in  said  cause. 

Your  petitioner  therefore  prays  that  a  day  be  fixed  for  the 
hearing  of  said  petition,. and  due  notice  thereof  be  given  to 
said  complainant  or  his  solicitor,  and  that  D.  W.,  or  some 
other  suitable  person,  be  appointed  guardian  ad  litem  of  the 
person  and  estate  of  said  minor,  as  aforesaid  in  said  cause, 
according  to  the  provisions  of  the  statute  in  such  case  made 
and  provided.  R.  S., 

Attorney  for  S.  B. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  945 

State  of ,  County  of ,  ss : 

On  this day  of ,  before  me  personally  came  R.  S., 

the  petitioner  named  in  the  foregoing  petition,  who  being  by 
me  duly  sworn  did  depose  and  say  that  he  has  heard  read  the 
foregoing  petition  by  him  subscribed,  and  knows  the  con- 
tents thereof,  and  that  the  same  is  true  according  to  the  best 
of  his  knowledge  and  belief.  J.  R., 

Notary  Public, County, . 

To  R.  X.,  Esq.,  Solicitor  for  Complainant — Sir: 

Please  take  notice  that  the  foregoing  petition  was  brought 
on  for  hearing  before  Hon.  H.  S.,  judge  of  the  district  court 

of  the   United    States   for  the   district   of  ,   

division,   in   equity,  on  the  day  of  June,  ,   at    10 

o'clock  in  the  forenoon  of  said  day,  or  as  soon  thereafter  as 
counsel  can  be  heard.  »  Yours,  etc., 

R.  Y., 
Dated  .  Solicitor  for  Defendants. 

I  hereby  consent  to  the  appointment  of  D.  W.  as  guardian 
ad  litem  of  S.  B  R.  X., 

Dated .  Solicj>r>«-  for  Complainant. 

No.  604. 

Order  Appointing  Guardian  ad  Litem  of  Defendant. 

[Caption.] 

This  cause  coming  on  to  be  heard  on  this  the  4th  day  of 
November,  1914,  upon  the  petition  of  Bessie  Wildcat,  a 
minor,  for  the  appointment  of  a  guardian  ad  litem  for  one  of 
the  defendants  in  the  above  entitled  action  and  plaintiff  in  a 
cross-complaint  filed  by  her  in  the  said  action,  and. 

It  appearing  to  the  court  that  Santa  W'atson  is  a  com- 
petent and  responsible  person,  and  that  he  has  consented  to 
act  as  such  guardian  ad  litem, 

It  is  hereby  ordered  that  the  said  Santa  Watson  be  and  he 
is  hereby  appointed  guardian  ad  litem  for  the  said  Bessie 
Wildcat,  a  minor,  and  is  authorized  and  directed  to  appear 


946  SUITS     IN     EQUITY. 

and  defend  the  above  entitled  action  on  her  behalf,   and  to 
prosecute  the  same  under  the  cross-petition  filed  in  said  cause. 

Ralph  E.  Campbell,  Judge. 


No.  605. 

Order  Appointing  Guardian  ad  Litem  by  Consent. 

[Caption.] 

This  application  having  come  on  to  be  heard  upon  the  peti- 
tion of  R.  S.,  representing  that  S.  B.,  one  of  the  above-named 
defendants,  under  the  age  of  twenty-one  years,  and  asking  for 
the  appointment  of  a  guardian  ad  litem  of  the  person  and 
estate  of  said  minor  in  said  cause,  and  R.  X.,  solicitor  for  said 
complainant,  having  consented  thereto,  in  writing,  it  is  or- 
dered that  D.  W.  be,  and  he  is  hereby  appointed  by  this  court, 
as  guardian  of  the  person  and  estate  of  said  S.  B.,  in  said 
cause. 


No.  606. 

Answer  of  Infant  by  Guardian  ad  Litem, 
[Caption.] 

Answer  of  defendant,  C.  D.,  an  infant,  under  the  age  of 
twenty-one  years,  by  C.  S.,  her  guardian  ad  litem,  to  the  bill 
of  complaint  of  A.  B.  herein. 

This  defendant,  C.  D.,  answering  by  her  said  guardian  ad 
litem,  C.  S.,  states  that  she  is  an  infant  of  the  age  of  seven- 
teen years,  and  she  therefore  submits  her  rights  and  interests 
in  the  matters  in  question  in  this  cause  to  the  protection  of 
this  honorable  court,  and  denies  any  matter  or  thing  material 
for  her  to  make  answer  to  and  not  herein  answered,  avoided 
and  denied.  And  she  prays  to  be  hence  dismissed  with  her 
reasonable  costs  and  charges  in  this  behalf  sustained. 

C.  D. 
By  C.  S.,  Guardian  ad  litem. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  947 

No.  607. 

Motion  to  Amend  Bill  of  Complaint  by  Crossing  Out  Original 
and  Inserting  Amended  Bill. 
[Caption.] 

Now  comes  the  petitioner  and  moves  to  amend  the  bill  of 
complaint  filed  by  crossing  out  the  whole  of  the  original  bill 
of  complaint  on  file  and  inserting  therefor  the  within  amend- 
ed bill  of  complaint.  By  its  attorney, 

M.  E.  R. 


No.  608. 

Motion  to  Amend  Amended  Bill  of  Complaint  by  Striking  Out 
Words  and  Inserting  Others. 
[Caption.] 

Now  comes  the  petitioner  and  moves  to  amend  the  amend- 
ed bill  of  complaint  on  file  by  striking  out  the  words  "Massa- 
chusetts Co-operative  Cigar  Company"  wherever  they  may 
appear  and  inserting  therefor  the  words  "Massachusetts  Co- 
operative Association."  (Signed  by  Attorney.) 


No.  609. 

Motion  to  Amend  Bill  by  Adding  Defendant.  (1) 

[Caption.] 

Comes  now  the  plaintiff  above  named,  and  moves  the  court 
that  he  may  have  leave  to  amend  his  bill  by  adding  the  said 
E.  F.,  a  defendant  thereto  with  apt  words  to  charge  him. 

R.  X., 
Attorney  for  Plaintiflf. 

(1)   Equity  Rule  19. 

All  persons  should  be  joined  who  are  so  related  to  the  subject- 
matter  of  the  suit  that  their  rights  must  be  passed  upon  by  the  court 
in  reaching  a  final  decree.  Coison  v.  Millaudon,  19  How.  113;  Con. 
Water  Co.  v.  Babcock,  75  Fed.,  76  Fed.  243;  Kelley  v.  Boettcher,  85 
Fed.  55. 


948  SUITS    IN    EQUITY. 

No.  610. 

Motion  to  Amend  Bill  by  Inserting  Matter. 

[Caption.] 

Comes  R.  X.,  solicitor  for  the  complainant,  moves  the  hon- 
orable court  to  amend  the  original  bill  in  this  cause  by  in- 
serting- in  the  first  paragraph  of  said  bill  after  the  word  "Ken- 
tucky," and  before  the  word  "for,"  the  following:  "And 
otherwise  complying  with  the  statutory  laws  of  Tennessee  and 
also  the  United  States,  regulating  foreign  corporation  by 
filing  an  abstract  of  the  complainant  charter  with  the  secre- 
tary of  state  for  registration,  and  with  the  registers  of  each 
county  where  your  complainant  is  engaged  in  business"  and 
which  is  marked  Exhibit  "A  &  B"  hereto. 


No.  611. 

Nunc  Pro  Tunc  Order  Permitting  an  Amendment  to  Bill. 

[Caption.] 

This  cause  came  on  to  be  heard  upon  motion  of  complain- 
ant's counsel,  before  the  Hon.  C.  D.,  district  judge,  to  amend 
the  complainant's  bill  in  the  first  paragraph  after  the  word 
"Kentucky"  and  before  the  word  "for,"  and  insert  the  follow- 
ing :  "And  otherwise  complying  with  the  statutory  laws  of  Ten- 
nessee regulating  foreign  corporations  by  filing  an  abstract  of 
the  complainant's  charter  with  the  secretary  of  state  for  regis- 
tration, and  with  the  registers  of  each  county  where  your 
complainant  is  engaged  in  business,"  and  also  the  United 
States.  The  court  having  considered  the  order,  and  being  of 
the  opinion  that  the  complainant  has  a  right  to  amend  its  bill 
as  set  out  above,  does  therefore  order  and  decree  that  the 
complainant  be  permitted  to  amend  its  bill  as  set  out.     This 

order  was  granted  at  Chambers  in  ,  on  the  ,  and  is 

entered  now  for  then. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  949 

No.  612. 

Motion  to  File  a  Second  Amended  Bill. 

[Caption.] 

The  complainant  moves  the  court  for  leave  to  file  a  second 
amended  bill,  wherein  a  conveyance  to  the  defendant,  C.  D., 
by  her  children,  of  the  real  estate  in  the  original  bill  de- 
scribed, is  alleged,  said  allegation  having  been  omitted  by 
clerical  error  in  the  original  bill.  X.  &  X., 

Solicitors  for  Complainant. 


No.  613. 

Order  Granting  Leave  to  File  Amended  Bill. 

[Caption.] 

This  cause  coming  on  to  be  heard  on  motion  to  file  amend- 
ed bill,   tendered  herein  .      The  court  now  being   fully 

advised,  orders  and  adjudges  that  said  amended  bill  be  and 
the  same  is  now  filed. 


No.  614. 

Order  for  Leave  to  Amend  Bill. 
[Caption.] 

Pursuant  to  agreement  in  open  court,  it  is  ordered  that  the 

complainant,  the  A.  B.  Trust  Company,  of  the  city  of  , 

be  and  it  hereby  is  given  leave  to  amend  its  bill  of  complaint 
herein  as  to  the  defendants,  the  Second  National  Bank,  of 
,  and  H.  Z. 

And  now  comes  the  said  A.  B.  Trust  Company,  of  the  city 

of  ,  and  files  an  amendment  to  its  bill  pursuant  hereto, 

and  it  is  ordered  that  each  of  the  defendants,  the  Second  Na- 
tional Bank,  of ,  and  H.  Z.,  file  their  answer  thereto  on 

or  before  the  March  rule  day,  and  on  failure  so  to  do  said 
bill  may  be  taken  pro  confesso  against  them. 


950  SUITS     IN     EQUITY. 

No.  615. 

Amendment  to  a  Bill.(l) 
[Caption.] 

And  now  comes  the  plaintiff,  and,  with  leave  of  the  court 
first  had  and  obtained,  amends  his  bill  of  complaint  herein, 
as  follows: 

First.  In  the  sixth  line  of  the  second  paragraph  of  said 
bill,  after  the  word  "thereto,"  insert  [here  set  forth  what  is 
to  be  inserted]. 

Second.  At  the  end  of  the  fifth  paragraph  add  the  follow- 
ing: [here  insert  the  additional  matter]. 

Third.  Erase  the  words  [set  them  forth],  in  the  third  line 
of  the  tenth  paragraph  [continue  in  like  manner  to  set  forth 
the  new  matter].  R.  X., 

Solicitor  for  Plaintiff. 

(1)  The  amendment  should  not  be  made  by  interlineations  and 
erasures  in  the  original  bill,  but  by  filing  the  same  on  separate  paper; 
and  the  amended  bill  should  state  no  more  of  the  original  bill  than  is 
necessary  to  make  intelligible  where  the  new  matter  is  to  be  inserted. 
See  also  Equity  Rule  19. 


No.  616. 

Motion  by  Plaintiff  to  Dismiss  His  Bill  with  Costs.  ( 1 ) 

[Caption.] 

Comes  now,  the  above-named  A.  B.,  complainant,  and 
shows  the  court  that  having  exhibited  his  bill  in  this  honor- 
able court  against  the  above-named  defendant,  who  ha^  ap- 
peared (and  put  in  his  answer)  thereto,  this  complainant  is 
now  advised  to  dismiss  his  said  bill. 

This  complainant  therefore  humbly  prays  that  the  said  bill 
may  stand  dismissed  out  of  this  court,  with  costs  to  be  taxed 
by  the  proper  taxing  master  (or  by  the  clerk  of  this  court). 

R.  X., 
Attorney  for  Plaintiff. 

(1)  Daniell's  Ch.  Prac,  5th  Am.  ed.  790. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  951 

See  the  discussion  and  citation  of  authorities  in  Young  v.  J.  Samuels 
&  Bro.,  232  Fed.  784,  and  note  the  comprehensive  collection  of  authori- 
ties at  page  787.  Where  the  case  has  been  referred  to  a  master  to  hear 
and  determine  all  issues  of  fact  and  of  law  and  the  master  has  made 
a  number  of  findings,  including  a  general  one  for  defendant,  and  after 
plaintiff  has  filed  exceptions  thereto,  voluntary  dismissal  w^ithout 
prejudice  to  plaintiff  would  be  prejudicial  to  the  defendant.  Smith  v. 
Carlisle,  228  Fed.  666  (reversing  224  Fed.  231);  City  of  Detroit  v.  De- 
troit City  Ry.  Co.,  55  Fed.  569,  for  good  discussion  of  the  general  prin- 
ciple; Pullman  Car  Co.  v.  Transportation  Co.,  171  U.  S.  138. 


No.  617. 

Motion  by  Party  Late  an  Infant,  on  Coming  of  Age,  to  Dismiss 
Bill  with  Costs,  before  Decree. 

[Caption.] 

Comes  now  the  plaintiff,  above  named,  late  an  infant,  but 
now  of  full  age,  and  shows  to  the  honorable  court : 

First.  That  this  plaintiff  when  an  infant,  by  C.  B.,  his  next 
friend,  filed  his  bill  in  this  cause  against  the  defendants,  to 
which  they  appeared ;  but  no  decree  has  yet  been  made  therein. 

Second.  That  this  plaintiff  has  now  attained  the  age  of 
twenty-one  years  and  is  not  desirous  to  proceed  any  further 
in  the  said  cause. 

Wherefore  this  plaintiff  now  moves  the  court  that  his  said 
bill  may  stand  dismissed  out  of  court ;  with  costs  to  be  paid 
by  him  to  the  said  C.  D.  and  to  the  defendants. 

R.  X., 
Attorney  for  Plaintiff. 


No.  618. 

Motion  for  Judgment  on  Pleadings. 

[Caption.] 

And  now  comes  C.  D.  O'Brien.  Esq..  solicitor  for  the  de- 
fendant in  the  above  entitled  cause,  and  moves  the  court  that 
judgment  in  favor  of  said  defendant  be  entered  upon  the 
pleadings  herein. 

And  said  motion  is  set  down  to  be  heard  at  10  o'clock 
a.  m.,  January  3,  1916. 


952  SUITS     IN     EQUITY. 

No.  619. 

Order  Granting  Motion  for  Judgment  on  Pleadings. 
[Caption.] 

The  above  entitled  cause  came  on  this  day,  pursuant  to 
agreement,  to  be  heard  upon  the  motion  herein  by  solicitor 
for  defendant  that  judgment  in  favor  of  said  defendant  be 
entered  upon  the  pleadings  herein,  said  plaintiff  appearing 
by  Amasa  C.  Paul,  Esq.,  its  solicitor,  and  said  defendant 
appearing  by  C.  D.  O'Brien,  Esq.,  its  solicitor.  And  there- 
upon the  said  solicitor  for  the  said  plaintiff  moves  the  court 
that  judgment  upon  the  pleadings  herein  be  entered  in  favor 
of  said  plaintiff;  and  argument  upon  both  of  said  motions 
having  been  made  to  and  duly  and  maturely  considered  by 
the  court,  it  is  by  the  court 

Ordered :  That  the  motion  herein  for  judgment  upon  the 
pleadings  in  favor  of  said  plaintiff  be  and  the  same  hereby 
is  granted. 

And  to  such  order  defendant  is  duly  granted  an  exception. 

And  the  solicitor  for  said  plaintiff  is  directed  to  draw  and 
present  to  this  court  to  be  signed  an  interlocutory  decree  pro- 
viding for  judgment  in  favor  of  said  plaintiff  and  for  a  per- 
petual injunction,  for  a  reference  to  Samuel  Whaley,  Esq., 
special  master,  to  ascertain  and  report  plaintiff's  damages 
sustained,  and  for  costs. 


No.  620. 

Motion  to  Strike  for  Insufficient  Facts.  (1) 
[Caption.] 

Comes  now  the  complainant  by  its  solicitors  of  record  and 
moves  the  court  to  strike  the  answer  of  all  the  defendants 
and  interveners  herein  filed  in  this  action  on  the  4th  day  of 
May,  1915,  for  the  reason  and  upon  the  ground  that  said  an- 
swer fails  to  set  forth  facts  sufficient  in  law  to  constitute  any 


NOTICES,      MOTIONS,      ORDERS,     DECREES,      ETC.  953 

defense  to  the  cause  of  action  set  forth  in  the  ameitded  bill 

of  complaint.  A.  B.  and  C.  D., 

Solicitors  for  Complainant. 
(1)   Equity  Rule  29. 


No.  621. 

Motion  to  Dismiss  for  Insufficient  Facts,  a  Remedy  at  Law 
and  no  Jurisdiction.  (1) 
[Caption.] 

Comes  now  W.  V.  Tanner,  as  attorney  general  of  the  state 
of  Washington,  one  of  the  defendants  above  named,  and  ap- 
pearing separately  and  for  none  other  of  the  defendants  here- 
in, moves  to  dismiss  the  bill  of  complaint  filed  herein,  for  the 
reasons  and  upon  the  grounds  that,  as  appears  upon  the  face 
thereof, 

I.  Said  bill  of  complaint  does  not  state  facts  sufficient  to 
warrant  this  court  in  granting  any  relief  to  the  plaintiffs; 

II.  That  plaintiffs  have  a  plain,  speedy  and  adequate  rem- 
edy at  law; 

III.  That  this  court  has  no  jurisdiction  over  the  persons  of 
these  defendants  or  either  of  them,  or  of  the  subject-matter 
of  this  action.  (Signed)         W.  V.  Tanner, 

Solicitor  for  said  Defendant, 
(1)   Equity  Rule  29. 


No.  622. 

Motion  to  Dismiss  Bill  of  Complaint  for  Infringement  of 

Copyright. 

[Caption.] 

On  motion  of  the  Dugan  Piano  Company,  J.  V.  Dugan, 
The  Item  Company,  Limited,  and  James  M.  Thompson,  the 
said  Item  Company,  Limited,  being  the  proprietor  of  the 
paper  known  as  the  "New  Orleans  Item,"  herein  represented 
by  Frank  E.  Rainold,  Louis  G.  Tessier  and  Robert  H.  Marr 
as  solicitors,  and  on  suggesting  to  the  court  that  the  alleged 
acts  of  the  defendants,  complained  of  in  the  bill  of  complain- 


'  954  SUITS     IN     EQUITY. 

ant,  do'  not  constitute  an  infringement  of  the  alleged  copy- 
right : 

(1)  Because  advertisements  are  not  copyrightable  and 
hence  advertisement  copy  is  not  copyrightable. 

(2)  Because  the  copyright  of  a  text-book  or  manual  of 
instruction  in  a  useful  art,  science  or  system  does  not  confer 
upon  the  author  or  the  pi-oprietor  of  the  text-book,  even 
though  copyriglitable,  a  right  of  property  in  the  art,  science 
or  system  explained  in  the  text-book  or  manual  of  instruction, 
and  hence  complainant  has  not  and  can  not  have  an  exclusive 
right  to  make,  sell,  print  or  use  advertisements  written  in  ac- 
cordance with  the  forms  set  forth  in  such  book,  and  com- 
plainant has  not  and  can  not  have  the  right  to  limit  the  use 
thereof  to  purchasers  of  said  manual  of  instruction  or  its 
licensees. 

(3)  Because  the  description  of  an  art,  science  or  system  in 
a  book,  although  said  book  may  be  entitled  to  the  benefit  of 
copyright,  lays  no  foundation  for  an  exclusive  claim  to  the 
art,  science  or  system,  as  explained  and  exemplified,  in  said 
book. 

Movers  further  show  that  in  the  event  that  the  bill  is  not 
dismissed  for  the  foregoing  reasons,  that  the  said  bill  is 
vague,  general  and  defective,   and  that: 

(1)  It  does  not  point  out  what  matter  in  said  book  is 
copyrightable  and  is  actually  protected,  in  the  opinion  of 
complainant  by  the  copyright  dated  September  12,  1912, 
relied  on  in  the  bill,  and 

(2)  It  does  not  set  out  particularly  what  copyrightable  and 
copyrighted  matter  contained  in  said  book  has  been  made  u.se 
of  by  the  defendants  in  the  alleged  advertisements  of  the 
Dugan  Piano  Company. 

(3)  Said  bill  does  not  set  out  what  portions  of  the  adver- 
tisements of  the  Dugan  Piano  Company  constitute  the  alleged 
infringement  of  the  copyright  of  September  12,  1912. 

And  on  further  suggesting  to  the  court,  that  in  the  opinion 
of  the  undersigned  solicitors  it  is  unnecessary  to  answer  the 
bill  of  complaint  for  the  reasons  above  stated,  and  that  in  the 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  955 

Opinion  of  undersigned  solicitors  the  reasons  first  stated  in 
this  motion  are  sufficient  in  point  of  law  to  dismiss  the  bill 
of  complaint ; 

It  is  ordered,  that  complainant  do  show  cause,  on  a  day  to 
be  fixed  by  the  court,  why  the  bill  of  complaint  should  not 
be  dismissed.  A.  B.  and  C.  D., 

[Service  acknowledged.]  Solicitors. 


No.  623. 

Motion  to  Dismiss  for  no  Equity,  Misjoinder,  Nonjoinder, 
Limitations  of  Statute,  Uncertainty,  etc. 

[Caption.] 

Now  come  the  defendants.  A.  and  B.,  and  on  the  records, 
pleadings  and  files  in  said  cause  move  the  court  to  dismiss 
the  complaint  upon  the  following  grounds,  to-wit : 

1.  That  it  appears  on  the  face  of  complaint  by  plaintiff's 
own  showing  that  they  are  not  entitled,  nor  is  either  of  them 
entitled,  to  the  relief  prayed  for  by  this  complaint  against  the 
defendants,  nor  to  any  relief  arising  from  the  facts  alleged  in 
said  complaint. 

2.  That  it  appears  on  the  face  of  said  complaint  that  this 
court  has  no  jurisdiction  to  hear  and  determine  this  suit. 

3.  That  it  appears  on  the  face  of  said  complaint  that  this 
court  has  no  jurisdiction  of  the  subject-matter  of  this  suit. 

4.  That  it  appears  on  the  face  of  said  complaint  that  said 
complaint  is  wholly  without  equity. 

5.  That  it  appears  on  the  face  of  said  suit  that  there  is  a 
non-joinder  of  parties  defendant  therein,  in  this,  that  T.  M. 
Campbell,  the  only  surviving  participant  in  the  alleged  fraud- 
ulent acts  and  concealments,  primarily  relied  upon  in  said 
complaint,  is  not  joined  as  a  party  defendant  therein. 

6.  That  it  appears  on  the  face  of  said  complaint  that  there 
is  a  misjoinder  of  causes  of  action  set  forth  therein,  in  this: 

(a)  That  an  alleged  cause  of  action  against  these  movants 
as  heirs  and  distributees  of  the  estate  of  Jeanette  Fensky,  de- 


956  SUITS      IN      EQUITY. 

ceased,  is  united  and  mingled  with  an  alleged  cause  or  alleged 
causes  of  action  against  other  persons  who  were  not  heirs  or 
distributees  of  said  Jeanette  Fensky,  and  with  whom  no 
privity  with  these  movants  or  either  of  them  is  shown  or 
alleged. 

(b)  That  an  alleged  cause  of  action  against  these  movants 
as  heirs  and  distributees  of  the  estate  of  Jeanette  Fensky,  de- 
ceased, is  united  and  mingled  with  an  alleged  cause  of  action 
against  one  who  acted  as  administrator  of  said  estate,  based 
upon  his  acts  as  such  administrator,  and  with  whom  no  priv- 
ity with  these  movants  or  either  of  them  is  shown  or  alleged. 

7.  That  it  appears  on  the  face  of  said  complaint  that  plain- 
tiff's supposed  cause  of  action  against  these  defendants  and 
each  of  them  is  barred  by  the  provisions  of  subdivision  4  of 
section  338  of  the  code  of  civil  procedure  of  the  state  of 
California. 

8.  That  it  appears  upon  the  face  of  said  complaint  that 
plaintiff's  supposed  cause  of  action  against  these  defendants 
and  each  of  them  is  barred  by  the  provisions  of  section  343 
of  the  code  of  civil  procedure  of  the  state  of  California. 

9.  That  it  appears  on  the  face  of  said  complaint  that  the 
causes  of  complaint  are  stale  and  that  so  long  a  time  has 
passed  since  the  matters  and  things  complained  of  took  place 
that  it  would  be  contrary  to  equity  and  good  conscience  for 
this  court  to  take  cognizance  thereof  or  to  enforce  any  fur- 
ther or  other  answer  thereto. 

10.  That  it  appears  on  the  face  of  said  complaint  and  from 
the  allegations  therein  that  the  right  of  action  set  up  in  said 
complaint  did  not  accrue,  if  it  accrued  at  all,  to  plaintiffs 
within  five  years  before  the  bringing  of  this  suit. 

11.  That  it  appears  on  the  face  of  said  complaint  and  the 
allegations  therein  that  the  right  of  action  set  up  in  said  com- 
plaint did  not  accrue,  if  it  accrued  at  all,  to  plaintiffs  within 
four  years  before  the  bringing  of  this  action. 

12.  That  it  appears  on  the  face  of  said  complaint  and  from 
the  allegations  therein  that  the  right  of  action  set  up  in  said 


NOTICES^     MOTIONS,     ORDERS,     DECREES,     ETC.  957 

complaint  did  not  accrue,   if   it  accrued  at  all,   to   plaintiffs 
within  three  years  before  the  bringing  of  this  action. 

13.  That  it  appears  on  the  face  of  said  complaint  that  the 
same  is  uncertain  in  each  of  the  following  respects,  to-wit : 

(a)  That  it  can  not  be  ascertained  therefrom  whether  the 
plaintiffs  or  either  of  them  had,  prior  to  the  sale  and  transfer 
to  Jeanette  Fensky  of  their  interests  in  the  estate  of  Ferdi- 
nand Fensky,  any  actual  knowledge  of  the  alleged  sales  of 
real  estate. 

(b)  That  it  can  not  be  ascertained  therefrom  whether  the 
deeds  described  in  paragraph  11,  or  any  of  them,  were  re- 
corded prior  to  the  sale  and  transfer  to  Jeanette  Fensky  of 
the  interests  of  the  plaintiffs  in  the  estate  of  Ferdinand  Fen- 
sky, nor  whether  the  alleged  purchasers  or  any  of  them  were 
then  in  possession  of  the  land  sold. 

(c)  That  it  can  not  be  ascertained  therefrom  what,  if  any, 
part  of  the  Kansas  real  estate  had  not  been  sold. 

(d)  That  it  can  not  be  ascertained  therefrom  what  was  the 
value  of  the  real  estate  or  personal  property  in  the  state  of 
California,  set  apart  to  the  widow  as  a  homestead  or  as  ex- 
empt property,  if  any. 

(e)  That  it  can  not  be  ascertained  therefrom  whether  the 
California  property  of  Ferdinand  Fensky,  or  any  of  it,  was 
com.munity  property,  nor  whether  it  was  shown  to  be  so  in 
the  inventory. 

(f)  That  it  can  not  be  ascertained  therefrom  what  papers 
or  records  filed  in  the  various  administration  proceedings  de- 
scribed in  plaintiffs'  complaint  are  alleged  to  have  failed  to 
disclose  the  truth,  nor  in  what  respects  or  particulars  they 
so  failed. 

(g)  That  it  can  not  be  ascertained  therefrom  what  repre- 
sentations or  statements  were  made  in  the  inventories  in  said 
administration  proceedings  upon  the  various  estates  or  in  any 
of  such  inventories,  nor  which  of  such  representations  or 
statements  were  believed  by  the  plaintiffs,  nor  which  thereof, 
if  any.  were  false,  nor  what  were  the  facts,  if  any,  showing 
them  to  be  so. 


958  SUITS  '  IN     EQUITY. 

14.  That  it  appears  on  the  face  of  said  complaint  that  the 
same  is  unintelligible  in  each  of  the  same  respects  in  which  it 
is  hereinbefore  alleged  to  be  uncertain. 

15.  Thai  it  appears  on  the  face  of  said  complaint  that  the 
same  is  ambiguous  in  each  of  the  same  respects  in  which  it  is 
hereinbefore  alleged  to  be  uncertain. 

Wherefore,  and  for  divers  other  good  reasons  of  objection 
appearing  upon  the  face  of  said  complaint,  these  defendants 
pray  the  judgment  of  this  honorable  court  whether  they  shall 
be  compelled  to  make  further  or  any  answer  to  the  said  com- 
plaint, and  they  humbly  pray  to  be  hence  dismissed  with  their 
reasonable  costs  in  this  behalf  sustained.  J.  H.  M., 

Solicitor  for  Defendants. 


No.  624. 

Informal  Motion  and  Decree  Dismissing  Bill  in  Open  Court, 
and  Notice  of  Exceptions. 

By  Attorney:  May  it  please  the  court  on  behalf  of  all  the 
defendants  and  intervenors  who  appeared  in  objection  to  ':he 
government,  we  ask  for  the  dismissal  of  the  government's 
bill  and  a  decree  in  favor  of  said  defendants  and  intervenors. 
For  the  reason  that  the  government  has  not  made  out  a  case, 
has  not  sustained  the  allegations  of  the  bill  by  the  evidence. 

By  the  Court:  The  decree  may  enter  in  favor- of  the  de- 
fendants dismissing  the  bill.     Exceptions  may  be  noted. 


No.  625. 

Motion  in  Answer  to  Dismiss  for  no  Unconstitutionality 
Shown,  no  Federal  Jurisdiction,  etc. 

And  the  said  defendants  and  each  and  every  of  them  say 
that  the  said  bill  of  complaint  ought  to  be  dismissed  because 
it  is  without  equity,  and  because  the  facts  therein  stated  are 
not  sufficient  to  constitute  a  valid  cause  of  action  in  equity, 
and  the  defendants  and  each  and  every  of  them  now  move  the 
said  court  to  dismiss  the  said  cause,  because : 


NOTICES,      MOTIONS,      ORDERS,     DECREES,      ETC.  959 

1.  That  the  said  bill  of  complaint  docs  not  make  out  or 
state  such  a  cause  as  to  entitle  the  complainants,  or  any  of 
them,  to  the  relief  prayed,  or  to  any  relief. 

2.  That  the  said  bill  of  complaint  is  argumentative  and 
does  not  state  a  case  which  will  warrant  the  interposition  of 
a  court  of  equity. 

3.  That  it  appears  from  the  averments  of  the  said  bill  of 
complaint  that  the  said  complainants,  and  each  of  them,  have 
a  complete  and  adequate  remedy  at  law. 

4.  That  it  is  not  shown  from  the  averments  of  the  said  bill 
that  the  statute  challenged  is  as  a  matter  of  law  in  contra- 
vention of  any  designated  provision  of  the  state  or  federal 
constitution,  but  on  the  contrary  it  appears  from  the  aver- 
ments of  the  said  bill  of  complaint  that  the  statute  challenged 
is  as  a  matter  of  law  a  valid  and  proper  exercise  by  the  state 
of  Florida  of  its  police  power  to  pass  and  enforce  inspection 
laws,  and  that  said  act  is  a  valid  inspection  law. 

5.  That  the  allegations  of  fact  in  the  said  bill  of  complaint 
are  not  sufficient  to  show  that  the  statute  challenged  is  in  con- 
travention of  the  power  of  Congress  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  nor  do 
the  allegations  of  the  bill  show  any  real  burden  imposed  by 
said  act  on  interstate  commerce,  nor  show  any  real  denial  of 
right,  or  deprivation  of  property  as  to  the  complainants,  or 
any  of  them. 

6.  That  it  appears  from  the  averments  of  the  said  bill  of 
complaint  that  the  said  suit  is  to  all  intents  and  purposes  a 
suit  against  the  state  of  Florida,  and  it  is  not  shown  that  the 
state  of  Florida  has  consented  to  be  sued. 

7.  That  it  appears  from  the  said  bill  of  complaint  that  the 
supposed  grounds  of  jurisdiction  of  a  federal  court  are  frivol- 
ous, with  no  facts  alleged  sufficient  to  show  or  make  it  appear 
that  any  real  substantial  federal  question  is  involved. 

And  that  the  defendants,  the  attorney  general  of  the  state 
of  Florida,  and  the  several  prosecuting  officers  of  the  state 
of  Florida,  here  made  defendants,  move  to  dismiss  the  said 
bill  in  so  far  as  it  seeks  to  restrain  and  enjoin  the  bringing  of 


960  SUITS     IX     EQUITY. 

criminal  prosecutions  or  the  enforcing  of  criminal  laws,  I)e- 
cause  it  is  apparent  that  in  such  particular  the  real  defendant 
is  the  state  of  Florida,  who  has  not  consented  to  be  sued,  and 
also  move  to  dismiss  the  said  bill,  for  each  and  every  of  the 
grounds  hereinbefore  assigned.  A.  B., 

Attorney  General  of  the  State  of  Florida. 
C.  D.  and  E.  F.,  Solicitors. 


No.  626. 

Motion  to  Dismiss  Intervening  Petition.  (1) 

[Caption.] 

Nannie  H.  Wright  and  D.  Gregory  Wright  move  the  court 
to  dismiss  the  intervening  petition  of  the  Sturtevant  Mill 
Company  on  each  of  the  following  grounds : 

1.  Said  intervening  petition  is  not  in  subordination  to,  and 
in  recognition  of  the  propriety  of  the  main  proceeding,  as 
required  by  federal  equity  rule  37. 

2.  The  intervenor  is  a  creditor  subsequent  to  the  matter 
complained  of  and  the  intervening  petition  is  without  equity 
and  does  not  entitle  the  intervenor  to  the  relief  prayed  for, 
or  to  any  relief. 

3.  The  intervenor  has  been  guilty  of  laches. 

4.  The  jurisdictional  amount  of  $3,000,  exclusive  of  inter- 
est and  costs,  is  lacking.  A.  B.  and  C.  D., 

Attorneys  for  Movants. 

(1)  See  Jennings  v.  Smith,  242  Fed.  561;  Atlas  Underwear  Co.  v. 
Cooper  Underwear  Co.,  210  Fed.  347. 


No.  627. 

Order  Overruling  Motions  to  Dismiss  Intervening  Petition. 

[Caption.] 

This  cause  came  on  to  be  heard  upon  the  motion  of  Nannie 
H.  Wright  and  D.  Gregory  Wright  (filed  April  15,  1916)  to 
dismiss  the  intervening  petition  of  the  Sturtevant  Mill  Com- 


NOTICES,      MOTIONS,     ORDERS,     DECREES,     ETC.  961 

pany;  was  argued  by  counsel  and  submitted  to  the  court,  and 
the  court  being  fully  advised,  finds  said  motion  not  well  taken 
and  overrules  the  same,  to  which  the  said  Nannie  H.  Wright 
and  D.  Gregory  Wright  except. 

Said  Nannie  H.  Wright  and  D.  Gregory  Wright  are 
granted  ten  days  from  the  date  of  this  order  in  which  to 
answer  said  intervening  petition. 

HoLLiSTER,  Judge. 

No.  628. 

Motion  to  Dismiss  Bill  Asking  for  Receiver. 

[Caption.] 

And  now,  to-wit,  the  15th  day  of  April,  1915,  comes  the 
Crown  Gasoline  &  Oil  Company,  by  Blair  &  Anderson,  and 
M.  L.  Thompson,  its  attorneys,  and  moves  that  the  bill  of 
complaint  in  the  above  entitled  case  be  dismissed,  as  not 
setting  forth  any  sufficient,  legal  or  equitable  reason  why  a 
receiver  for  the  company  should  be  appointed. 

Defendant  assigns  as  specific  reasons  why  the  bill  of  com- 
plaint is  insufficient,  in  that  it  does  not  set  forth  that  the 
plaintiff  has  secured  a  judgment  against  the  defendant  com- 
pany, or  that  he  is  in  position  now  to  secure  a  judgment 
against  the  defendant. 

2nd.  The  bill  of  complaint  fails  to  set  forth  that  any  cred- 
itor has  secured  a  judgment  against  the  company,  or  th.U 
any  creditor  can  secure  a  judgment  against  the  company 
defendant. 

R.  and  A., 
Attorneys  for  Crown  Gasoline  &  Oil  Company. 


No.  629. 

Motions  for  Various  Purposes  made  on  Hearing  informally. 

Mr.  Davis  then  moved  to  dismiss  the  bill  on  the  ground 
that  this  court  has  no  jurisdiction  because  there  is  no  diver- 
sity of  citizenship  between  the  parties;  also  upon  the  ground 


962  SUITS    IN     EQUITY. 

that  assuming  that  the  court  has  jurisdiction  this  is  not  a 
case  where  it  should  exercise  it,  because  it  appears  that  the 
surrogate's  court  of  Kings  county  has  issued  letters  of  admin- 
istration to  the  defendant  and  tliis  court  should  not  interfere 
with  the  administration  by  the  probate  court  of  the  state  in 
an  action  which  in  any  way  could  result  in  an  interference. 
He  also  moved  to  dismiss  the  bill  upon  the  ground  that  it 
fails  to  state  facts  sufficient  to  constitute  any  cause  of  action 
whatever,  and  upon  the  ground  that  there  was  no  delivery  of 
either  Exhibit  A  or  Exhibit  B  annexed  to  the  complaint  as 
appears  from  the  concessions  of  plaintiff's  counsel  upon  his 
opening.  He  also  moved  that  the  court  compel  the  plaintiff 
to  elect  upon  which  cause  of  action  she  would  proceed.  He 
also  demanded  a  jury  trial  if  the  plaintiff  intended  to  pro- 
ceed with  the  case  upon  any  theory  outside  of  a  strict  trust 
and  also  upon  the  ground  that  if  there  was  a  trust  it  was 
passive  and  the  action  should  be  at  law.     *     *     * 

In  the  course  of  argument  upon  the  motions  the  following 
occurred  : 

Mr.  Patterson :  I  wish  to  renew,  for  the  purposes  of  the 
record,  the  motions  which  were  previously  made  before  your 
honor,  to  strike  out  various  defenses  in  the  answer.  I  move 
to  strike  out  the  third  paragraph,  as  constituting  no  defense 
to  the  first  cause  of  action ;  and  separately  as  to  the  fourth 
paragraph,  as  constituting  no  defense  for  the  first  cause  of 
action ;  and  I  move  separately  to  strike  out  the  fifth,  sixth, 
seventh,  eighth,  ninth  and  tenth  paragraphs  of  the  answer  as 
constituting  no  defense  to  the  first  cause  of  action ;  and  I 
move  separately  to  strike  out  the  fourteenth  paragraph  of 
the  answer  as  constituting  no  defense  to  the  first  cause  of 
action.  T  move  separately  to  strike  out  the  seventeenth  para- 
graph of  the  answer  as  constituting  no  defense  to  the  second 
cause  of  action,  and  I  move  separately  to  strike  out  the 
eighteenth  paragraph  of  the  answer  as  constituting  no  de- 
fense to  the  second  cause  of  action.  I  move  separately  to 
Strike  out  the  nineteenth  and  twentieth  paragraphs  of  the 
answer   as   constituting   no   defense   to   the    second   cause   of 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  963 

action,  and  I  move  separately  to  strike  out  the  twenty-second 
paragraph  of  the  answer  as  constituting  no  defense  to  the 
second  cause  of  action. 

The  Court :     I  will  reserve  ruling  on  the  motions. 

Mr.  Davis :  I  renew  my  motions  to  dismiss  on  the  whole 
case,  and  move  to  strike  out  Exhibits  1  and  2  and  4  and  7, 
and  all  the  testimony  in  relation  thereto,  and  reassert  my 
constitutional  right  to  trial  by  jury,  in  the  event  that  any 
recovery  is  sought  by  plaintiff  or  is  allowed  to  plaintiff  on 
the  claim  of  legal  ownership  as  distinct  from  a  trust. 

Mr.  Patterson:  We  also  renew  all  of  our  motions  and 
move  to  strike  out  all  of  the  testimony  and  evidence  offered 
by  the  defendant  upon  the  same  grounds  stated  at  the  time 
such  evidence  was  received,  and  we  ask  the  court  to  direct 
an  interlocutory  judgment  in  favor  of  the  plaintiff  for  an 
accounting. 

Decision  reserved. 

Briefs  to  be  submitted. 


No.  630. 

Motion  to  Dismiss  made  on  Special  Appearance. 

[Caption.] 

The  defendants  herein  by  their  attorneys,  Watson  and 
Pasco,  and  T.  F.  \Vest,  attorney-general  of  the  state  of 
Florida,  appearing  specially  and  without  submitting  to  or 
acknowledging  the  jurisdiction  of  this  court  to  try  and  de- 
termine the  issues  involved  in  this  cause,  or  to  make  any 
valid  orders  in  said  cause,  move  the  court  to  dismiss  the 
said  cause,  and  for  grounds  for  such  motion  say : 

1.  That  the  said  bill  of  complaint  does  not  make  out  or 
state  such  a  case  as  to  entitle  the  complainants,  or  any  of 
them,  to  the  relief  prayed,  or  to  any  relief. 


964  SUITS     IN     EQUITY. 

2.  That  said  bill  of  complaint  does  not  allege  or  show  the 
existence  of  sufficient  facts  to  entitle  the  complainants  or  any 
of  them,  to  the  relief  prayed,  or  to  any  relief. 

3.  That  said  bill  of  complaint  is  argumentative  and  does 
not  state  a  case  which  will  warrant  the  interposition  of  a 
court  of  equity. 

4.  That  it  appears  from  the  averments  of  said  bill  of  com- 
plaint that  the  said  complainants  and  each  of  them  have  a 
complete  and  adequate  remedy  at  law. 

5.  That  it  does  not  appear  from  the  averments  of  said  bill 
of  complaint  that  the  statute  challenged  as  unconstitutional  is 
in  contravention  of  any  designated  provision  of  the  state  or 
federal  constitution. 

6.  That  it  appears  from  the  averments  of  said  bill  of 
complaint  that  the  statute  challenged  is  a  valid  and  proper 
exercise  by  the  state  of  the  power  to  pass  and  enforce  inspec- 
tion law. 

7.  That  it  appears  from  the  averments  of  said  bill  of  com- 
plaint that  the  statute  challenged  is  not  in  contravention  of 
that  provision  of  the  federal  constitution  conferring  on  the 
Congress  of  the  United  States  the  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  states  of  the 
Union. 

8.  That  it  appears  from  the  averments  of  the  bill  of  com- 
plaint that  the  suit  is  to  all  intents  and  purposes  a  suit  against 
the  state  of  Florida. 

9.  That  it  appears  from  the  averments  of  the  bill  of  com- 
plaint that  as  to  the  prosecuting  officers  named  as  defendants 
therein  the  suit  is  to  all  intents  and  purposes  a  suit  against 
the  state  of  Florida. 

W.  and  P., 
Attorneys  for  Defendants. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  965 

No.  631. 

Separate  Motion  of  Defendant  Railway  to  Dismiss. 
[Captiofi.] 

I.  Defendant,  The  Denver  and  Rio  Grande  Railroad 
Company,  severally  moves  that  the  amended  bill  of  com- 
plaint in  the  above  entitled  suit,  and  the  whole  thereof,  be 
dismissed  for  insuflficiency  of  fact  to  constitute  a  valid 
cause  of  action  in  equity  against  this  defendant,  either  sev- 
erally or  jointly  with  the  other  defendants,  in  the  follow- 
ing  respects   and    each   of   them : 

First.  It  appears  from  the  plaintiff's  own  showing  by  his 
amended  bill  that  this  court  has  no  jurisdiction  to  hear  and 
determine  this  suit. 

Second.  The  amended  bill  does  not  state  facts  sufficient  to 
constitute  a  valid  cause  of  action  in  equity  against  this  de- 
fendant either  severally  or  jointly  with  the  other  .defendants. 

Third.  It  appears  by  the  plaintiff's  own  showing  by  his 
amended  bill  that  he  is  not  entitled  to  any  relief  in  view  of 
Equity  Rule  No.  27. 

Fourth.  It  appears  by  the  plaintiff's  own  showing  by  his 
amended  bill  that  he  has  no  title  to  maintain  this  suit,  or  to 
any  relief  against  this  defendant  by  reason  of  the  facts  therein 
alleged. 

Fifth.  It  appears  by  the  plaintiff's  own  showing  by  his 
amended  bill  that  he,  and  his  assignors  and  predecessors  in 
ownership  (if  any),  of  the  common  stock  of  this  defendant 
alleged  to  be  owned  by  the  plaintiff,  have  for  many  years 
(namely,  at  least  seven  years)  prior  to  the  institution  of  this 
suit  acquiesced  in  and  ratified  all  of  the  acts  of  this  defend- 
ant charged  by  the  bill  to  have  been  and  to  be  unlawful  or 
ultra  vires  and  have  recognized  the  validity  of  the  acts  of  the 
defendant  now  complained  of,  and  have  been  guilty  of  gross 
laches  in  the  institution  of  any  suit  on  account  of  the  matters 
by  plaintiff  alleged,  and  he  is  therefore  estopped  in  equity 
from  instituting,  prosecuting  or  maintaining  this  action. 


966  SUITS    IN     EQUITY. 

Sixth.  It  appears  by  the  plaintiff's  own  showing  by  his 
amended  bill  that  this  suit  was  not  brought  and  is  not  being 
maintained  in  good  faith,  or  for  the  purpose  of  protecting 
the  value  ot  the  ten  shaies  of  common  stock  of  this  defendant 
alleged  by  the  plaintiff  to  be  owned  by  him,  or  for  any  purpose 
entitling  the  plaintiff  to  invoke  the  aid  of  a  court  of  equity. 

Seventh.  The  said  amended  bill  fails  to  state  facts  suf- 
ficient to  show  that  this  defendant  has  ever  violated  or  is  vio- 
lating any  act  of  Congress  of  the  United  States  mentioned  in 
the  amended  bill,  and  especially  the  commodities  clause  of  the 
Interstate  Commerce  Act,  or  the  act  of  July  2,  1890,  entitled, 
"An  Act  to  Protect  Trade  and  Commerce  Against  Unlawful 
Restraints  and  Monopolies,"  commonly  called  the  Sherman 
Anti-Trust  Act,  or  that  the  defendant  has  ever  committed  any 
act  in  violation  of  the  rights  or  interests  of  the  plaintiff  as 
an  alleged  owner  of  ten  shares  of  the  common  stock  of  this 
defendant. 

II.  And  without  waiver  of  the  foregoing  motion,  but  re^ 
lying  thereon,  defendant.  The  Denver  and  Rio  Grande  Rail- 
road Company,  severally  moves  that  the  amended  bill  of 
complaint  in  the  above  entitled  cause,  insofar  as  it  is  based 
upon  or  seeks  any  relief  because  of  any  alleged  violation  or 
threatened  violation  by  this  defendant  of  the  act  of  Con- 
gress of  July  2,  1890,  commonly  called  the  Sherman  Anti- 
Trust  Act,  be  dismissed  for  insufficiency  of  fact  to  consti- 
tute a  valid  cause  of  action  in  equity  against  this  defendant, 
either  severally  or  jointly  wath  the  remaining  defendants, 
and  particularly  for  the  reasons  and  in  the  respects  specified 
in  the  preceding  subdivision  "I"  of  this  motion,  and  each 
thereof. 

And  in  connection  therewith  this  defendant  moves  to  strike 
from  the  amended  bill  all  portions  thereof  relating  or  refer- 
ring to  said  last  mentioned  act  of  Congress,  or  alleged  viola- 
tions thereof,  and  particularly  paragraphs  15,  16,  17,  18,  19 
and  20  of  the  amended  bill,  and  each  and  every  one  of  said 
paragraphs,  and  also  all  that  portion  of  paragraph  24  reading 
as  follows: 


NOTICES,      MOTIONS,     ORDERS,     DECREES,      ETC.  967 

"That  tb"  aforesaid  matters  and  things  have  continually 
constituted  and  do  now  constitute  an  unlawful  and  unreason- 
able combination  and  conspiracy  in  restraint  of  trade  and 
commerce  among  the  several  states  within  the  meaning  and 
purview  of  the  act  of  Congress  of  July  2,  1890,  entitled,  'An 
Act  to  Protect  Trade  and  Commerce  Against  Unlawful  Re- 
straints and  Monopolies.'  " 

III.  And  without  waiver  of  the  foregoing  motions,  or 
either  thereof,  but  relying  thereon,  defendant,  The  Denver 
and  Rio  Grande  Railroad  Company,  severally  moves  that 
the  amended  bill  of  complaint  in  the  above  entitled  suit, 
insofar  as  it  is  based  upon  or  seeks  any  relief  because  of 
any  alleged  violation  or  threatened  violation  by  this  defend- 
ant of  the  Interstate  Commerce  Act,  and  particularly  the 
commodities  clause  thereof,  be  dismissed  for  insufficiency 
of  fact  to  constitute  a  valid  cause  of  action  in  equity  against 
this  defendant,  either  severally  or  jointly  with  the  remaining 
defendants,  and  particularly  for  the  reasons  and  in  the  re- 
tcspes  specified  in  the  preceding  subdivision  "I"  of  this 
motion. 

And  in  that  connection  this  defendant  moves  to  strike  from 
the  amended  bill  all  portions  thereof  relating  or  referring  to 
said  last  mentioned  act  of  Congress,  or  to  alleged  violations 
by  this  defendant  thereof,  and  [particularly]  paragraphs  6, 
7,  8,  10,  14,  19,  20,  21,  22  and  23  of  the  said  amended  bill, 
and  each  of  said  paragraphs,  and  also  any  and  every  other 
portion  of  said  amended  bill  which  pretends  to  allege  facts  or 
conclusions  intended  to  support  plaintiff's  allegations  of  vio- 
lations of  said  commodities  clause. 

A.  B  and  C.  D., 

Solicitors  for  Defendant,  The  Denver  and  Rio  Grande 
Railroad  Company. 


968  SUITS     IN     EQUITY. 

No.  632. 

Motion  to  Dismiss  Suit  by  Individual  Against  the  United 

States. 
[Caption.] 

Now  comes  the  United  States  of  America  by  its  counsel 
and  moves  that  the  court  dismiss  the  bill  of  complaint  in  the 
above  entitled  proceeding: 

(1)  For  lack  of  jurisdiction,  on  the  ground  that  the  court 
is  without  jurisdiction  to  entertain  a  suit  by  a  private  party 
against  the  United  States  to  modify  an  existing  decree  of  the 
court  entered  in  a  suit  brought  by  the  United  States  and  is 
without  power  to  enter  any  order  in  such  proceeding  except 
an  order  dismissing  the  bill  of  complaint  for  want  of  juris- 
diction. 

(2)  For  insufficiency  of  fact  to  constitute  a  valid  cause  of 
action  in  equity. 

United  States  of  America, 

By  A.  B., 
Special  Assistant  to  the  Attorney-General. 

Special  service  accepted  by  X.  Y.,  Solicitor  for  Plaintiff. 


No.  633. 

Motion  to  Vacate  Preliminary  Injunction  in  Part. 

[Caption.] 

And  now,  this  7th  day  of  April,  1915,  come  Walter  E. 
Masland,  Charles  H.  Masland,  Maurice  H.  Masland,  Charles 
W.  Masland,  Frank  E.  Masland  and  J.  Wesley  Masland,  the 
defendants  in  the  above  case,  and  respectfully  move  the  court 
to  vacate  the  preliminary  injunction  granted  by  it  on  the 
26th  day  of  March,  1915,  insofar  as  the  same  applies  to  the 
right  of  the  defendants  or  their  counsel  to  directly  or  in- 
directly disclose  any  and  all  processes,  apparatuses,  articles  of 
manufacture  or  compositions  of  matter,  or  any  new  or  useful 
improvements    thereon,    claimed   to   be   the   property   of   the 


NOTICES,      MOTIONS,     ORDERS,     DECREES,     ETC.  969 

plaintiffs,  to  expert  or  fact  witnesses  produced  at  or  during 
the  taking  of  proofs  of  trial,  including  the  right  to  consult 
with  expert  or  fact  witnesses  regarding  the  same,  either  dur- 
ing cross-examination  cr  in  preparation  or  presentation  of 
the  defendants'  case. 

George  Quintard  Horwitz, 

Attorney  for  Defendants. 


No.  634. 

Motion  to  Vacate  Order  Allowing  Fees. 

[Caption.] 

The  United  States  of  America,  by  its  attorney-general  and 
by  its  attorneys,  Robert  W.  Childs  and  Roger  B.  Hull,  special 
assistants  to  the  attorney-general  of  the  United  States,  move 
this  honorable  court  to  set  aside,  vacate  and  annul  an  order 
of  this  court  filed  in  the  above  entitled  action  in  the  office  of 
the  clerk  of  this  court  on  Saturday,  May  8,  1915,  awarding 
and  allowing  to  A.  B.  and  C.  D.  the  sum  of  $20,000  as  fees 
and  compensation  in  the  said  cause.  This  motion  is  made 
upon  the  following  grounds: 

1.  Because  the  said  order  awarding  and  allowing  said  fees 
was  unauthorized  by  and  contrary  to  law. 

2.  Because  said  order  awarding  and  allowing  said  fees  was 
entered  without  previous  notice  to  plaintiff  in  this  cause,  or 
to  the  Pirrung  estate,  a  party  at  interest  in  this  cause. 

3.  Because  the  amount  of  said  fees  was  unreasonably 
excessive. 

And  the  United  States  of  America  also  moves  this  court 
to  vacate  the  order  entered  in  the  office  of  the  clerk  of  this 
court  on  May  7,  1915,  awarding  and  allowing  to  X.  Y., 
receiver,  the  amount  of  $20,000,  for  the  following  reasons : 

1.  Becaus*"  the  said  order  was  entered  without  previous 
notice  to  plaintiff  in  this  cause,  or  to  the  Pirrung  estate,  a 
party  at  interest  in  this  cause. 

2.  Because  the  amount  of  said  fees  was  unreasonably 
excessive. 


970  SUITS    IN     EQUITY. 

This  motion  is  based  upon  the  files  and  records  in  the 
department  of  justice  and  in  the  treasury  department  of  the 
United  States  government  in  Washington,  and  upon  support- 
ing affidavits  to  be  filed  hereafter. 

Respectfully, 

T.  W.  Gregory, 

Attorney-General. 
Robert    W.    Childs, 
Roger  B,  Hull, 
Special  Assistants  to  the  Attorney-General. 

June  1,  1915,  9:55  A.  m. 
On  consideration  and  for  good  cause  shown  the  hearing 
of  the  within  motion  is  continued  until  the  June  term,  1915.- 

J.  E.  Sater, 

Judge. 


No.  635. 

Order  to  Withdraw  Answer  to  Have  it  Sworn  to  by 
Defendant. 

[Caption.] 

In  this  cause,  it  is  by  consent  ordered  that  defendants  be 
permitted  to  withdraw  their  answer  heretofore  filed  herein 

on  the  day  of  ,  for  the  purpose  of  having  said 

answer  sworn  to  by  defendant,  R.  M.,  and  that  when  the 
same  is  so  sworn  to,  it  may  be  filed. 


No.  636. 

Motion  to  Amend  Answer.  (1) 

[Caption.] 

Now  comes  C.  D.,  the  intervening  and  answering  defend- 
ant herein,  and  moves  the  court  for  leave  to  amend,  by  inter- 
lineation, his  answer  filed  herein  on  the  day  of  , 

19 — ,  as  follows : 


NOTICES,      MOTIONS,     ORDERS,     DECREES,      ETC.  971 

First.     By  striking  out  the  words  and  figures,  etc.,  in  line 
and  ,  pages ,  and  inserting  instead  thereof  the 


words  and  figures  following,  etc.  R.  Y., 

Attorney  for  Defendant. 

(1)   Equity  Rule  19. 


No.  637. 

Motion  for  Leave  to  Amend  an  Answer  by  Consent.  (1) 
[Caption.] 

Now  comes  the  defendant,  C.  D.,  and  shows  to  the  court: 

First.     The  plaintiflf  lately  filed  his  bill  in  this  cause  against 

this  defendant,  who  appeared  thereto,  and  on  the  day 

of ,  19 — ,  filed  his  answer  to  the  said  bill. 

Second.  This  defendant  has  since  discovered  the  mistakes 
hereinafter  mentioned  in  his  said  answer  and  desires  to  cor- 
rest  the  same. 

And,  therefore,  moves  the  court  for  leave  by  consent  of 
the  plaintiff  to  amend  his  said  answer  in  the  respects  follow- 
ing; namely  [state  the  proposed  amendments]. 

R.  Y., 
Attorney  for  Defendant. 

(1)   Equity  Rule  19. 


No.  638. 

Motion  to  Amend  Answer  with  Notice  Accepted. 
[Caption.] 

Now  come  the  defendants  in  the  above  entitled  cause,  and 
move  the  court  for  leave  to  file  the  above  and  foregoing 
amendment  nunc  pro  tunc  as  of  the  date  of  the  filing  of  the 
original  answer  herein.  R-  Y., 

Of  Counsel  for  Defendants. 
Messrs.  X.  &  X., 

Solicitors  for  Complainant : 
Gentlemen :    Please  take  notice  that  upon  the  date  of  hear- 
ing of  the  above  entitled  cause,  and  prior  to  such  hearing, 


972 


SUITS    IN     EQUITY. 


I  shall  submit  the  foregoing  motion  for  leave  to  amend  the 
answer.  R.  Y, 

Of  Counsel  for  Defendants. 
Dated  . 

Service  of  the  above  and  foregoing  motion  and  notice  ac- 
cepted, and  the  receipt  of  a  copy  thereof  and  of  the  amend- 
ment referred   to  therein  acknowledged,   at  .   this  

day  of .  X.  &  X., 

Counsel  for  Complainant. 


No.  639. 

Order  Granting  Leave  to  File  Amended  Answer  and  Fixing 
Time  for  Testimony. 

[Caption.] 

The  above-named  cause,  coming  on  this day  of , 

to  be  heard  on  the  motion  of  the  defendant  for  leave  to  file 
an  amended  answer  herein,   instanter,  and  for  extension  of 

the  time  to  file  testimony  to ,  and  the  court  having  heard 

the  evidence  adduced  on  said  motion,  and  being  fully  ad- 
vised in  the  premises,  does  hereby  grant  said  motion. 

It  is  therefore  ordered  by  the  court  that  the  defendant  be, 
and  he  is  hereby,  granted  leave  to  file  his  amended  answer  in 
the  above  entitled  cause  forthwith,  and  said  defendant  is 
hereby  granted  leave  to  file  his  testimony  on  or  before  Oc- 
tober 1,  — --. 

It  is  further  ordered  that  the  complainant  shall  have  until 
October  15, ,  to  file  its  testimony  in  rebuttal. 


No.  640. 

Amended  Answer. 

[Caption.] 

Now  comes  the  above-named  defendant,  C.  D.,  and  by 
leave  of  court  first  had  and  obtained,  files  this  his  amended 
answer  to  the  bill  of  complaint  filed  herein,  by  adding  the 
following  paragraph  after  paragraph  six  of  the  answer   [or 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  973 

by  inserting  after  the  words  here  state  the  place  where  the 
amendment  is  to  be  inserted]  the  following  [here  insert  the 
nezv  matter  and  conclude  as  in  original  answer]. 


No.  641. 

Motion  for  Leave  to  File  Supplemental  Answer  by 
Consent.  (1) 
[Caption.] 

Now  comes  the  defendant,  C.  D.,  and  shows  to  the  court: 

First.   The  plaintiff  lately  filed  his  bill  in  this  cause  against 

this  defendant,  who  appeared  thereto,  and  on  the  day 

of ,  19 — ,  filed  his  answer  to  the  said  bill. 

Second.  This  defendant  has  since  discovered  certain  mis- 
takes in  his  said  answer,  and  desires  to  explain  and  correct 
the  same  by  a  supplemental  answer. 

This  defendant  therefore  moves  the  court  by  consent  of 

the  plaintiff  he  may  be  at  liberty  on  or  before  the  day 

of  .  19 — ,  to  file  a  supplemental  answer  to  the  plain- 
tiff's bill,  for  the  purpose  of  [state  what,  e.  g.,  correcting 
statements    inadvertently   made   in   his   answer    filed    on    the 

day  of  ,   19 — ,  that  he  had  not  sold  an  artificial 

exhaust  elsewhere  than  at  his  mill  at  W. ;  and  as  to  the 
number  of  millstones  to  which  such  machinery  had  been 
applied].  R.  Y., 

Attorney  for  Defendant. 

(1)  Equity  Rules  32  and  34. 


No.  642, 

Supplemental  Answer,  (1) 
[Caption.] 

Now  comes  the  above-named  defendant,  the  C.  D.  Mining 
Company,  and  by  leave  of  court  first  had  and  obtained,  files 
this,  its  supplemental  answer,  to  the  complaint  of  the  plain- 
tiflf  filed  herein,  and  alleges: 


974  SUITS    IN     EQUITY. 

First.  That  since  the  commencement  of  the  above  entitled 
action  and  the  fih'ng  of  the  complaint  therein,  and  since  the 
filing  of  the  answer  of  this  defendant  therein,  this  defendant 
has  purchased  from  the  government  of  the  United  States 
that  certain  quartz  lode  mining  claim  called  the  C.  D.,  situ- 
ated in  G.  mining  district,  county,  ,  more  particu- 
larly described  as  follows,  to-wit:  [Here  describe  property.] 

And  has  paid  the  government  of  the  United  States  for 
said  mining  claim  at  the  rate  of  five  dollars  ($5.00)  per 
acre;  and  has  obtained  the  receiver's  receipt  of  the  United 

States  land  office  at  for  the  land  district  in  which  said 

mining  claim  is  situated,  for  the  sum  of  money  so  paid  for 
said  mining  claim. 

Second.  That  by  virtue  of  the  said  purchase  and  payment, 
and  the  holding  of  the  said  receipt  of  the  receiver  for  the  pur- 
chase price  of  the  said  mining  claim,  the  defendant,  the  C.  D. 
Mining  Company,  is  now  the  owner  of  the  said  C.  D.  mining 
claim,  so  described  as  aforesaid  in  fee.  R.  Y., 

Attorney  for  Defendant. 

[Verification.] 

(1)  Equity  Rule  34. 


No.  643. 

Order  Extending  Time  to  Answer. 

[Caption.] 

On  application  of  the  defendants,  they  are  allowed  thirty 
days  from  the  entry  of  this  order  within  which  to  answer 
the  complainant's  bill. 

No.  644. 

Entry  of  Consolidation  of  Suits.  (1) 

[Caption.] 

By  order  of  court  made  this day  of ,  the  case  of 

the  A.  B.  Trust  Company  vs.  the  C.  &  D.  Railroad  Company, 
C.  &  D.  et  al..  No. upon  the  docket  of  this  court,  and  also 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  975 

the  case  of  the  A.  B.  Trust  Company  vs.  the  E.  &  F.  Railway 

Company,  the  C.  &  D.   Railway  Company  et  al,  No.  

upon  the  docket  of  this  court,  both  filed  on  said  date,  were 
consolidated  with  this  cause,  and  the  orders  and  proceedings 
heretofore  had  in  said  causes  respectively  are  hereby  made 
orders  and  proceedings  in  this  cause,  the  consolidated  cause  to 
proceed  under  the  title  of  this  cause. 

(1)  R.  S.  U.  S.,  Sec.  921,  and  notes  thereon  in  6  Fed.  Stat.  Ann.,  2d 
ed.,  p.  80;  Foster's  Fed.  Prac,  5th  ed.,  Sec.  472. 


No.  645. 

Order  Granting  Leave  to  Intervene.  (1) 

[Caption  in  main  suit.] 

This  day  came  E.  F.,  by  R.  S.,  his  solicitor,  and  moves  the 
court  for  leave  to  file  an  intervening  petition  in  this  cause, 
which  motion  is  hereby  granted  and  such  leave  given  upon  the 
said  petitioner  giving  the  usual  cost  bond  in  such  behalf  ac- 
cording to  the  practice  of  the  court ;  and  such  cost  bond  being 
now  given  the  said  petition  is  now  accordingly  filed. 

(1)  Where  the  property  of  a  defendant  is  in  the  possession  of  the 
court  or  one  of  its  officers,  a  person  having  an  interest  in  or  claim 
against  such  property  may  ordinarily  intervene  in  the  main  suit  to  set 
up  his  claim  or  interest.  See  Savings  &  Trust  Co.  v.  Bear  Valley  Ins. 
Co.,  93  Fed.  339.  In  such  cases  the  court  may  entertain  a  petition 
by  the  aggrieved  person  either  in  the  form  of  a  simple  motion  or  by 
intervention  pro  interesse  suo  in  the  cause  in  which  the  process  issued 
or  by  ancillary  or  dependent  bill  in  equity  and  may  afford  such  relief 
as  right  and  justice  require.  The  existence  of  such  a  power,  independ- 
ent of  statutory  jurisdiction,  is  recognized  by  the  supreme  court  in 
Freeman  v.  Howe,  24  How.  450;  Minnesota  Company  v.  St.  Paul  Com- 
pany, 2  Wall.  609-633;  Railroad  Companies  v.  Chamberlain,  6  Wall. 
748;  Krippendorf  v.  Hyde,  110  U.  S.  276;  Pacific  Railroad  of  Missouri 
V.  Missouri  Pacific  Ry.  Co.,  Ill  U.  S.  505;  Stewart  v.  Dunham,  115  U.  S. 
61;  Phelps  v.  Oaks,  117  U.  S.  236;  Dewey  v.  West  Fairmount  Gas  Com- 
pany, 123  U.  S.  329;  Gumbel  v.  Pitkin,  124  U.  S.  131;  Johnson  v.  Chris- 
tian, 125  U.  S.  642-646;  Morgan's  Co.  v.  Texas  Central  Railway,  137 
U.  S.  171. 

For  forms  of  petitions  see  under  "Receivers,"  Nos.  620  et  seq. 

Equity  Rule  37;  Kardo  Co.  v.  Adams,  231  Fed.  950. 


976  SUITS     IN     EQUITY. 

No.  646. 

Order  Denying  Application  to  Intervene. 

[Caption.] 

This  day  this  cause  came  on  further  to  be  heard  upon  the 
application  of  S.  B.  for  leave  to  file  the  intervening  petition 
and  the  answer  attached  to  said  application,  and  on  the  evi- 
dence adduced  by  the  parties,  including  the  ofifer  made  in  open 
court  at  the  hearing  by  the  reorganization  managers  and  filed 
herein,  and  was  argued  by  counsel ;  and  the  court  being  fully 
advised  in  the  premises  finds  that  all  and  singular  the  allega- 
tions of  fraud  and  collusion  made  in  said  proposed  interven- 
ing petition  and  answer  are  untrue ;  that  said  E.  &  F.  Railway 
Company,  at  the  time  of  the  filing  of  the  several  bills  of  com- 
plaint herein,  was  and  now  is  insolvent;  that  the  several  de- 
faults in  the  payment  of  interest  as  set  forth  in  said  bills  of 
complaint  were  and  are  bona  fide,  and  that  said  plan  of  re- 
organization is  fair  and  just  to  all  interests,  including  those 
of  the  said  S.  B.  in  case  he  should  choose  to  avail  himself 
thereof. 

Therefore  it  is  ordered  and  adjudged  that  the  said  appli- 
cation be  and  hereby  is  denied.  But  it  is  ordered  that  the  said 
S.  B.  may,  in  case  he  refuse  to  accept  said  offer  of  said  reor- 
ganization managers,  file  in  this  court,  within  ten  days  if  he 
be  so  advised,  an  intervening  petition  for  the  purpose  only  of 
setting  up  any  claim  he  may  have  to  participate  in  the  distri- 
bution of  the  proceeds  of  the  sale  hereinbefore  ordered. 


No.  647. 

Motion  for  Leave  to  Intervene. 
[Caption.l 

Comes  now  George  M.  Swift  and  moves  the  court  for  leave 
to  intervene  as  a  party  defendant  in  the  above  entitled  case 
and  represents. to  the  court  that  he  is  interested  in  the  lands 
set  out  in  the  original  and  amended  bill  of  complaint  and  the 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  977 

oil  and  gas  being  produced  therefrom,  as  the  assignee  and 
trustee  of  Saber  Jackson,  one  of  the  parties  to  the  above  en- 
titled action,  and  who  is  the  owner  of  a  life  estate  by  courtesy 
in  said  land,  and  desires  to  file  an  answer  and  cross-petition 
herein,  and  asks  that  Howard  Webber  be  made  a  party  de- 
fendant to  said  suit  for  the  reason  that  he  is  a  necessary  party 
to  this  suit  for  the  final  and  complete  determination  of  the 
rights  of  this  intervening  defendant,  in  this,  to-wit :  That  the 
said  Howard  Webber  is  a  sub-lessee  of  the  Black  Panther  Oil 
&  Gas  Company  and  is  operating  the  said  lease  as  such  sub- 
lessee, being  engaged  in  drilling  oil  wells  upon  said  lands  and 
taking  oil  from  said  lands  and  marketing  the  same,  and  is  con- 
verting the  proceeds  of  such  sales  of  oil  to  his  own  use  and 
committing  waste  thereby  upon  the  estate  of  the  said  Saber 
Jackson,  and  on  this  intervening  defendant,  in  and  to  the  said 
lands. 

That  the  Black  Panther  Oil  &  Gas  Company  is  operating 
by  and  through  the  said  sub-lessee,  Howard  Webber,  under 
a  lease  for  oil  and  gas  mining  purposes,  made  and  executed 
by  the  said  Saber  Jackson,  covering  the  said  lands,  which 
lease  has  been  assigned  to  the  Black  Panther  Oil  &  Gas  Com- 
pany. That  the  said  lease  and  the  assignments  thereof  con- 
veying the  same  to  the  Black  Panther  Oil  &  Gas  Company 
were  of  record  upon  the  land  records  of  Creek  county,  Okla- 
homa, where  the  said  land  is  situate  and  the  said  Howard 
Webber  took  the  said  sub-lease  with  full  notice  and  knowledge 
of  the  same.  That  the  said  Howard  Webber  is  operating  the 
said  sub-lease  under  a  contract  by  the  terms  of  which  he  gets 
one-half  of  all  of  the  oil  produced  from  said  lands  and  is  con- 
verting the  same  to  his  use  by  selling  the  same  and  appro- 
priating the  proceeds  thereof,  to  the  injury  of  this  intervening 
petitioner,  and  of  the  said  Saber  Jackson,  and  thereby  com- 
mitting waste  upon  the  estate  of  the  said  intervening  petitioner 
and  of  the  said  Saber  Jackson  in  said  lands. 

That  on  December  24,  1914,  the  defendant,  Saber  Jackson, 
made,  executed  and  delivered  to  one  T.  E.  Standley  a  war- 
ranty deed  and  assignment  of  oil  and  gas  royalties  accrued 


978  SUITS    IN    EQUITY. 

and  to  accrue,  which  warranty  deed  and  assignment  was  pro- 
cured by  false  and  fraudulent  representations,  and  was  wholly 
without  consideration.  That  the  said  T.  E.  Standley  is  assert- 
ing some  rights  in  the  land  and  royalties,  and  is  a  necessary 
party  to  the  complete  and  final  determination  of  this  action. 

That  the  intervening  petitioner  has  been  empowered  as 
trustee  for  the  said  Saber  Jackson  under  a  proper  power  of 
attorney  to  institute  suit  to  cause  the  said  deed  to  be  cancelled, 
a  copy  of  which  power  of  attorney  is  hereto  attached  and 
/narked  Exhibit  "A." 

That  this  intervening  defendant  holds  an  assignment  to  him- 
self as  trustee  for  himself  and  Saber  Jackson  of  the  interest 
of  Saber  Jackson,  in  and  to  the  royalties  accruing  and  to  ac- 
crue under  and  by  virtue  of  a  certain  oil  and  gas  mining  lease, 
made  and  executed  by  the  said  Saber  Jackson  to  J.  Coody 
Johnson,  under  date  of  November  13,  1913,  and  by  assign- 
ment from  J.  Coody  Johnson  assigned  and  conveyed  to  L.*C. 
Parmenter,  as  trustee  under  date  of  January  27,  1914,  and  by 
assignment  of  said  L.  C.  Parmenter,  assigned  and  conveyed 
to  the  Black  Panther  Oil  &  Gas  Company,  a  corporation,  under 
date  of  February  4,  1914. 

That  under  said  lease  and  by  the  terms  thereof  this  inter- 
vening defendant  and  the  said  Saber  Jackson  are  entitled  to  a 
one-eighth  royalty  from  the  proceeds  of  the  wells  now  drilled 
upon  said  lands  and  which  may  hereafter  be  drilled  upon  said 
lands,  which  royalty  interest  is  not  contingent  upon  the  estab- 
lishing of  any  interest  in  or  to  the  said  lands. 

Wherefore  the  said  intervening  defendant  asks  the  court 
to  make  and  cause  to  be  entered  herein  an  order  permitting 
the  said  George  M.  Swift,  trustee,  to  intervene  herein,  and 
making  the  said  Howard  Webber  and  T.  E.  Standley  parties 
defendant  herein.  A.  B., 

Attorney  for  George  M.  Swift. 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  979 

No.  648. 

Order  Denying  Petition  to  Intervene. 
(Another  Form.) 

[Caption.] 

Now  on  this  22nd  day  of  February,  1915,  comes  on  to  be 
heard  the  application  of  George  M.  Swift  for  leave  to  inter- 
vene in  this  cause,  and  after  argument  of  counsel,  and  due 
consideration,  the  court  finds  that  the  application  should  be 
denied. 

It  is  therefore  considered,  ordered  and  decreed  that  the 
application  of  George  M.  Swift  for  leave  to  intervene  in  this 
cause  be  and  the  same  is  hereby  denied,  to  which  order  of  the 
court  George  M.  Swift  asks  and  is  allowed  his  exceptions. 


No.  649. 

Order  Allowing  Petition  to  Intervene  (Another  Form). 

[Caption.] 

This  cause  coming  on  to  be  heard  on  the  application  of  the 
city  of  Amarillo,  intervener  in  this  suit,  to  be  made  a  party, 
and  the  petition  having  been  duly  considered,  and  it  appearing 
to  the  court  that  the  said  city  of  Amarillo,  petitioner,  has  an 
interest  in  the  subject-matter  of  this  suit  sufficient  to  enable 
it  to  become  a  party  to  this  suit : 

It  is  therefore  ordered,  adjudged  and  decreed  that  the  city 
of  Amarillo,  petitioner,  has  leave  to  intervene  in  said  suit. 

This  order  to  be  without  prejudice  in  any  proceedings  here- 
tofore had  in  this  cause.  E.  R.  Meek, 

Judge  of  the  District  Court  of  the  United  States  for  the 
Northern  District  of  Texas,  Amarillo  Division. 


980  SUITS    IN     EQUITY. 

No.  650. 

Petition  of  a  City  Intervenor. 
[Caption.] 

Comes  now  your  intervenor,  the  City  of  Amarillo,  a  mu- 
nicipal corporation,  duly  incorporated  under  the  laws  of  the 
state  of  Texas,  and  having  its  domicile  in  the  county  of  Potter, 
state  of  Texas,  and  within  the  northern  district  of  Texas, 
Amarillo  division,  complaining  of  Emile  B.  Boisot,  trustee, 
hereinafter  called  plaintiff,  and  Amarillo  Street  Railway  Com- 
pany, hereinafter  called  defendant,  and  Guy  W.  Faller,  here- 
inafter called  receiver,  and  represents  and  shows  unto  your 
honor : 

1.  That  your  intervenor  has  an  interest  in  the  subjeci- 
matter  of  this  suit,  the  same  being  a  first  and  paramount  lien 
upon  all  the  properties,  franchises,  etc.,  belonging  to  or  in  any 
wise  appertaining  to  the  Amarillo  Street  Railway  Company, 
which  may  be  situated  within  the  corporate  limits  of  said  city 
of  Amarillo,  which  interest  and  lien  accrued  and  is  as  follows, 
to-wit : 

*  *  **  *  *  *  *  * 

9.  Wherefore  this  intervenor  says  that  by  reason  of  the 
facts  set  up  in  the  preceding  paragraph  the  lien  for  the  cost 
of  paving  between  the  rails,  and  for  a  distance  of  two  feet  on 
the  outside  of  each  outer  rail  of  the  tracks  of  the  Amarillo 
Street  Railway  Company  on  the  portion  of  South  Polk  street, 
which  has  been  assessed  by  the  city  of  Amarillo  against  said 
railway,  is  and  should  by  this  court  be  so  declared  a  first  and 
paramount  lien  against  the  property  and  franchises  of  the 
Amarillo  Street  Railway  Company,  taking  precedence  over 
and  to  be  satisfied  before  the  lien  of  the  mortgagees  or  bond- 
holders as  asserted  by  plair'dfif  i-  \  this  cause. 

10.  Your  intervenor  would  fwrther  represent  and  show  to 
the  court  that  at  the  hearing  heretofore  had  for  the  benefit  of 
the  property  owners  as  heretofore  alleged,  Guy  W.  Faller  at 
that   time   general  manager  of  the  Amarillo   street   railway 


NOTICES,     MOTIONS,     ORDERS,     DECREES,     ETC.  981 

system  in  Amarillo,  appeared  and  offered  no  objection  or  pro- 
test to  the  levy  and  assessment  against  the  property  and  fran- 
chise of  said  Street  railway  system,  but  agreed  that  said  street 
railway  company  would,  in  accordance  with  the  terms  and 
provisions  of  the  notice  published,  pave  the  portion  of  South 
Polk  street  occupied  by  said  street  railway  company  and  for 
a  distance  of  two  feet  outside  of  each  outer  rail  thereof,  and 
place  the  additional  concrete  base  as  required  by  said  city  com- 
mission under  the  foundation  required  for  said  paving  and 
secured  from  the  said  commission  the  right  to  temporarily 
suspend  the  operation  of  their  street-car  system  on  North  Polk 
for  the  purpose  of  enabling  said  street-car  system  to  facilitate 
the  work  of  excavating  on  South  Polk,  where  the  paving  was 
to  be  done ;  and  in  pursuance  of  said  promise,  said  street  car 
company  immediately  began  the  prosecution  of  the  work,  by 
excavating  along  its  tracks  and  rails  and  for  a  distance  of  two 
feet  on  the  outside  of  each  outer  rail  thereof,  all  of  which  was 
done  prior  to  the  institution  of  the  suit  and  the  appointment 
of  the  receiver  by  this  court. 

W'^herefore,  premises  considered,  this  intervenor  would  show 
to  your  honor  that  a  necessity  exists  by  reason  of  the  fact  that 
the  city  of  Amarillo  has  incurred  and  is  liable  to  incur  large 
sums  of  extra  expense  on  account  of  the  excavated  and  incom- 
pleted condition  of  that  portion  of  the  street  occupied  by  the 
tracks  of  the  street  railway  company,  and  the  fact  that  immedi- 
ately upon  the  institution  of  this  suit  and  the  appointment  of  a 
receiver  by  this  court,  the  street  railway  company,  or  the  re- 
ceiver so  appointed,  suspended  the  work  which  had  already 
been  begun  as  heretofore  alleged  in  this  petition ;  for  the  issu- 
ance by  this  court  of  an  immediate  order  to  the  receiver  to 
proceed  with  and  continue  and  complete  the  work  so  begun 
and  left  in  the  incomplete  stage;  or  if  said  receiver  can  not 
proceed  with,  continue  and  complete  the  paving  of  the  street 
railway  area  with  his  own  force,  that  he  be  instructed  by  the 
court  to  at  once  enter  into  an  arrangement  with  some  person 
or  persons  to  complete  said  work ;  and  this  is  necessary  on  ac- 


982  SUITS  IN   EQUITY. 

count  of  the  fact  that  intervener  has  no  remedy  in  the  ordinary 
course  of  law,  the  property  being  in  the  custody  of  this  court 
and  the  receiver  operating  and  handling  the  same  under  the 
direction  of  this  court.  Intervener  prays,  therefore,  that  the 
order  prayed  for  be  issued  at  once ;  that  this  court  recognize 
and  so  state  its  decree,  that  the  lien  created  by  the  special  as- 
sessment levied  by  the  city  of  Amarillo  for  the  paving  of  the 
street  railway  area  is  a  first  and  paramount  Hen  and  is  to  be 
satisfied  out  of  the  proceeds  of  the  operation  of  the  railway 
company  by  the  receiver,  or,  if  the  property  should  be  sold, 
out  of  the  proceeds  of  the  sale  thereof,  ahead  of  and  before 
any  part  of  the  amount  claimed  by  the  bondholders;  and  for 
any  other  and  further  relief  which  intervener  may  show  itself 
entitled  to  upon  the  hearing  of  this  cause. 

The  City  of  Amarillo, 
By  A.  B.,  Attorney.  Intervener. 


No.  651. 

Petition  of  Intervention. 

[Caption.] 

Comes  now  the  state  of  Iowa,  the  intervener  herein,  and 
represents  to  the  court  that  it  has  an  interest  in  the  matter  in 
controversy  adverse  to  the  complainant  herein  and  states : 

I.  That  section  2419  of  the  code  of  the  state  of  Iowa,  this 
intervener,  became  effective  July  4,  1888,  and  is  still  in  force, 
and  is  as  follows ;    *    *    * 

II.  That  section  4043  of  the  sixty-second  Congress,  second 
session,  known  as  the  "Webb-Kenyon"  law,  was  enacted 
March  1,  1913,  and  reads  as  follows:    *    *    * 

III.  That  if  the  prayer  of  the  complainants  be  granted  and 
the  temporary  injunction  heretofore  issued  herein  be  made 
permanent,  then  the  defendants  herein  will,  by  the  order  of 
this  court,  be  not  only  permitted,  but  required  to  violate  the 
provisions  of  section  2419  of  the  code  of  the  state  of  Iowa, 
the  intervener  herein,  as  well  as  the  provisions  of  the  Webb- 


NOTICES,    MOTIONS,   ORDERS,   DECREE?,   ETC.  983 

Kenyon  law,  in  addition  to  their  violation  of  the  provisions  of 
sections  2  and  3  of  section  2421 -a,  supplemental  supplement, 
1915,  set  forth  at  length  at  pages  10  and  11  of  complainant's 
printed  bill. 

IV.  That  the  violation  of  said  laws  of  the  intervener  herein 
by  the  defendants  herein  and  others  similarly  situated  will 
result  in  great  and  irreparable  injury  to  this  intervener. 

Wherefore  intervener  prays  that  the  temporary  order  made 
herein  on  September  21,  1915,  be  set  aside,  and  that  complain- 
ant's bill  be  dismissed  and  that  complainants  and  each  of  them 
be  enjoined  from  offering  for  shipment  and  that  the  defend- 
ants and  each  of  them  be  enjoined  and  restrained  from  receiv- 
ing for  transportation  into  Iowa,  from  transporting  or  de- 
livering within  the  state  of  Iowa,  any  spirituous,  vinous,' 
malted,  fermented  or  other  intoxicating  liquors,  except  to  the 
consignees  in  person,  and  then  only  when  such  consignee  is 
the  holder  of  a  permit  to  sell  the  same  for  lawful  purposes, 
and  for  such  other  and  further  relief  as  to  equity  pertains. 

A.  B.,  Atty.  Gen.  of  Iowa, 
C.  D.,  Asst.  Atty.  Gen.  of  Iowa, 

Solicitors  for  Intervener. 


No.  652. 

Motion  to  Assign  Time  Within  which  Parties  shall  take 

Evidence. 
[Caption.] 

Now  comes  the  plaintiff  [or,  defendant]  herein  and  moves 
the  court  to  assign  a  time  within  which  the  parties  respectively 
shall  take  their  evidence.  X.  &  Y., 

Solicitors  for . 


984  SUITS   IN    EQUITY. 

No.  653. 

An   Order   Assigning   Time   within   which   to   take 
Testimony.  (1) 
[Caption.] 

The  above-named  cause  coming-  on  this day  of 


to  be  heard  on  motion  of  plaintiff  [or,  defendant]  for  an  order 
to  assign  time  within  which  the  parties  respectively  shall  take 
their  evidence,  and  counsel  being  heard  for  the  respective 
parties,  it  is  hereby  ordered  that  the  plaintiff  shall  have  until 

the day  of ,  1894,  within  which  to  take  his  evidence 

in  chief,  and  that  the  defendant  thereafter  shall  have  until  the 

day  of ,  within  which  to  take  his  evidence,  and  that 

the  plaintiff  thereafter  shall  have  until  the day  of , 

in  which  to  take  his  evidence  in  rebuttal. 
(1)  Equity  Rules  47  and  48. 


No.  654. 

Order  Allowing  Testimony  by  Depositions.  (1) 
[Caption.] 

This  day  came  the  complainant  and  filed  herein  the  affidavit 
of  its  attorney,  E.  B.  Anderson,  and  moved  the  court  that  it 
be  allowed  to  take  the  testimony  of  its  witnesses  by  way  of 
depositions  to  be  used  in  its  behalf  on  the  trial  of  this  cause 
and  at  the  same  time  a  stipulation  of  the  parties  hereto  was 
filed  and  pursuant  to  said  motion  and  said  stipulation  it  is  or- 
dered that  the  testimony  of  all  of  the  witnesses,  both  those  for 
the  complainant  and  for  the  defendants,  be  taken  by  deposi- 
tions and  that  said  depositions  be  used  by  the  respective  parties 
for  whom  they  are  taken. 

It  is  further  ordered  that  the  depositions  for  the  complain- 
ants be  taken  and  filed  herein  forty  days  from  this  date,  and 
that  those  for  the  defendant  be  taken  and  filed  within  thirty 
days  from  the  expiration  of  the  time  for  the  filing  of  com- 
plainant's depositions,  and  that  rebutting  depositions  for  either 


NOTICES,    MOTIONS,   ORDERS,  DECREES,   ETC.  985 

of  the  parties  hereto  shall  be  taken  and  filed  within  twenty 
days  after  the  time  for  the  taking  of  the  original  depositions 
for  the  respective  parties  hereto  has  expired. 

(1)   Equity  Rule  47. 

There  is  disagreement  among  the  courts  as  to  the  effect  of  Equity 
Rule  47  in  view  of  R.  S.  U.  S.,  Sec.  863. 

See  Victor  Talking  Machine  Co.  v.  Sonora  Phonograph  Corp.,  221 
Fed.  676;  Iowa  Washing  Machine  Co.  v.  Montgomery,  Ward  &  Co., 
227  Fed.  1004;  Block  v.  Arrowsmith  Mfg.  Co.,  243  Fed.  775,  and  the 
case  of  Audiffren  Refrigerating  Machine  Co.  v.  General  Electric  Co., 
245  Fed.  783,  in  which  it  is  held  that  a  court  may,  where  procedure  is 
irregular,  vacate  the  notice  in  advance  of  the  taking  of  the  depositions, 
the  nature  of  the  power  being  the  same  as  that  exercised  in  suppress- 
ing a  deposition. 

The  deposition  of  witness  who  has  before  deposed  may  be  taken 
for  cause  shown,  245  Fed.  783,  above. 

The  effect  of  Equity  Rule  47  is  to  regulate  the  method  of  procedure 
under  R.  S.  U.S.,  Sec.  863,  and  it  does  not  vary  said  statute;  this  con- 
struction of  Equity  Rule  47  harmonizes  its  provisions  with  the  statu- 
tory provisions,  245  Fed.  783,  above. 

Equity  Rule  47  does  not  limit  the  power  of  the  court  by  order  to 
permit  the  taking  of  depositions  at  any  time.  United  States,  etc.,  Co. 
V.  Mackey  Wall  Plaster  Co.,  252  Fed.  397. 


No.  655. 

Order  Allowing  Particular  Deposition  to  be  Taken.  (1) 

[Caption.] 

This  day  came  the  plaintifi"  and  filed  herein  a  notice,  accepted 
by  the  defendants  through  their  attorney,  W.  P.  Sandidge,  and 
moved  the  court  for  an  order  allowing  it  to  take  the  deposi- 
tion of  Arthur  Talkington,  in  Kansas  City,  Missouri,  and  in 
support  of  said  motion  filed  the  affidavits  of  C.  H.  Brooks, 
E.  B.  Anderson  and  F.  T.  Ransom,  and  the  motion  being  sub- 
mitted to  the  court,  it  is  ordered,  the  parties  plaintiff  and  de- 
fendant, through  their  respective  attorneys  agreeing  thereto, 
that  the  deposition  of  said  witness,  Arthur  Talkington,  may 
be  taken  in  St.  Louis,  Missouri. 

(1)  See  Equity  Rule  47  and  U.  S.  R.  S.,  Sec.  863. 


986  SUITS   IN    EQUITY. 

No.  656. 

Order  Preserving  Oral  Testimony  Taken  in  a  Suit  in 
Equity.(l) 
[Caption.] 

The  evidence  in  this  case  having  been  given  in  open  court 
orally  and  taken  down  stenographically.  and  thereafter  re- 
duced to  typewriting  by  the  stenographer,  and  such  typewritten 
copy  having  been  approved  as  correct  by  the  parties : 

It  is  ordered  that  such  typewritten  copy  of  testimony  be 
filed  by  the  clerk  and  that  it  be  accepted  and  treated  in  all 
respects  as  if  the  same  had  been  taken  before  an  examiner  or 
by  deposition  and  duly  admitted  in  evidence,  and  it  is  ordered 
that  such  testimony  may  be  filed  within  thirty  days  with  the 
same  force  and  effect  as  if  filed  before  the  trial. 

(1)  Oral  testimony  is  now  required  by  Equity  Rule  46,  unless  other- 
wise permitted  by  statute  or  equity  rules. 


No.  657. 

Stipulation  to  Read  Depositions  Taken  in  Another  Case, 

The  District  Court  of  the  United  States  for  the  Dis- 
trict of . 

A.  B. 

vs. 

C.  D. 

It  is  hereby  agreed  between  the  plaintififs  and  defendants, 
through  their  respective  counsel,  that  the  depositions  and  ex- 
hibits taken  and  on  file  in  action  No.  ,  in  this  court,  en- 
titled S.  R.,  plaintiff,  vs.  L.  M.  National  Bank,  etc.,  defendants, 
may  be  read  on  the  trial  of  the  above  styled  action  in  this  court, 
by  either  party,  and  that  either  party  may  produce  and  read  on 
the  trial  of  this  action  such  of  said  depositions  and  exhibits 
taken  and  on  file  in  the  aforesaid  action  of  S.  R.  vs.  L.  M. 
National  Bank,  etc.,  as  he  or  it  desires,  subject  to  all  excep- 
tions for  relevancy.     And  it  is  further  agreed  and  stipulated 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  987 

that  either  party  may  further  examine  or  retake  in  this  action 
or  further  cross-examine  in  this  action  any  witness  whose 
deposition  on  file  in  the  aforesaid  action  of  S.  R.  vs.  L.  M. 
National  Bank,  etc.,  is  to  be  read. 

And  it  is  further  agreed  that  the  reading  of  said  depositions, 
or  any  of  them,  is  to  be  wholly  without  prejudice  to  the  rights 
of  any  of  the  parties  herein  to  testify  in  his  or  its  own  behalf 
and  to  take  further  evidence.  R.  X., 

Attorney  for  Plaintiflf. 
R.  Y., 
Attorney  for  Defendant. 


No.  658. 

Motion  to  take  Additional  Testimony.  (1) 

[Caption.] 

Now  comes  the  defendant,  the  C.  D.  Company,  herein  and 
moves  this  honorable  court  that  this  cause  be  reopened  for  the 
purpose  of  permitting  the  said  defendant  to  take  newly  dis- 
covered testimony.  In  support  of  this  motion,  the  affidavits 
of  E,  S.  and  R.  T.  are  attached  hereto  and  made  a  part  hereof. 

R.  Y., 
Attorney  for  Defendant. 

(1)  This  motion  should  be  supported  by  affidavits  stating  the  nature 
of  the  newly  discovered  evidence  and  showing  reasons  for  not  intro- 
ducing it  at  an  earlier  stage  in  the  case.  As  to  practice  in  such  cases 
see  Allis  v.  Stowell,  85  Fed.  481;  Giant  Powder  Co.  v.  Powder  Co., 
5  Fed.  197.  Note  that  Equity  Rule  46  requires  testimony  to  be  taken 
in  open  court,  with  some  exceptions. 


No.  659. 

Order  to  Re-Open  Case  and  take  Further  Testimony.  (1) 

[Caption.] 

On  reading  and  filing  the  defendants'  motion,  and  the  affi- 
davits of  E.  S.  and  R.  T.,  thereto  annexed,  and  after  hearing 
R.  Y.,  Esq.,  for  the  defendants,  and  R.  X.,  Esq.,  for  the  plain- 


988  SUITS  IN   EQUITY. 

tiff,  it  is  ordered  that  this  cause  be  reopened  and  that  the  time 
allowed  for  taking  testimony  on  behalf  of  the  defendants  in 

the  above  entitled  cause  be  extended  to  and  including  the 

day  of . 

(1)  As  to  when  such  leave  will  be  granted,  see  Allis  v.  Stowell,  85 
Fed.  481;  In  re  Gamewell,  etc.,  Tel.  Co.,  73  Fed.  908. 

A  district  court  can  not  reopen  case  after  the  term  at  which  final 
decree  was  rendered;  Roemer  v.  Simon,  91  U.  S.  149;  Brooks  v.  R.  R. 
Co.,  102  U.  S.  107. 


No.  660. 
Order  Suppressing  Notice  of  taking  Testimony,  (1) 
[Caption.] 

On  motion  of  R.  Y.,  in  behalf  of  defendants  in  the  above 
cause,  it  is  hereby  ordered  that  complainant's  witness,  Lau- 

reau,  be  produced   for  cross-examination  at  ,  on  ; 

or  in  lieu  of  this,  that  the  complainant's  notice  for  taking 

testimony  in ,  on  the day  of ,  be  postponed  to 

read  on  the day  of ;  and  that  said  witness,  Laureau, 

be  produced  at  that  time. 

In  case  the  complainant,  at  their  option,  produce  said  wit- 
ness, Laureau,  for  cross-examination  in ,  on  the day 

of (in  accordance  with  the  first  section  of  this  order), 

the  notice  for  taking  testimony  in  on  the  same  date  is 

hereby  suppressed. 

(1)  Henning  v.  Boyle,  112  Fed.  397. 


No.  661. 

Order  Fixing  Time  within  which  to  File  Briefs. 

[Caption.] 

On  motion  of  complainant,  by  R.  Y.,  of  counsel,  it  is  now 
ordered  that  this  case  be  and  the  same  is  submitted  generally. 
It  is  further  ordered  that  the  parties  complainant  and  defend- 
ant have  and  they  are  given  sixty  days  from  the  date  of  this 
entry  to  file  briefs  herein. 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  989 

No.  662. 

Stipulation  to  Submit  Cause  on  Printed  Briefs. 

[Caption.] 

It  is  hereby  stipulated  and  agreed  that  this  cause  be  sub- 
mitted to  the  court  on  printed  arguments ;  the  plaintiff's  coun- 
sel to  serve  his  argument  within  days,  and  the  defend- 
ant's counsel  to  answer  the  same  within days  thereafter, 

and  the  plaintiff's  counsel  to  reply  within days  after  the 

defendant's  counsel's  arguments  shall  have  been  served. 

Dated  this day  of ,  at .  R.  X., 

Solicitor  for  Plaintiff. 
R.  Y., 
Solicitor  for  Defendant. 


No.  663. 

Motion  to  Enter  a  Decree  Nunc  Pro  Tunc. 

[Caption.] 

Comes  now  the  plaintiff  [or,  defendant]  above  named  and 
moves  the  court : 

That  the  decree  [or,  order]  made  in  this  cause,  bearing  date, 
etc.,  has  been  drawn  up,  but  the  time  for  entering  the  same, 
according  to  the  rules  of  this  court,  being  elapsed  : 

This  plaintiff  [or,  defendant],  therefore,  moves  the  court 
that  the  said  decree  [or,  order]  may  be  entered  nunc  pro  tunc 

as  of  the day  of .  R.  &  R., 

Attorneys  for . 


No.  664. 

Motion  to  Rectify  a  Decree  or  Order. 
[Caption.] 

Comes  now  the  plaintiff  [or,  defendant]  and  shows  to  the 
court : 

First.  That  by  the  decree  [or,  by  an  order]  made  in  this 
cause  by  [as  the  case  may  be],  dated  the day  of , 


990  SUITS  IN   EQUITY. 

19 — ,  it  was  decreed,  etc.     [Set  out  so  much  of  the  decree  or 
order  as  is  material  to  the  subject-matter  of  the  motion.] 

Second.  That  the  said  decree  [or,  order]  has  been  duly 
entered  in,  etc. 

Third.  That  since  such  entry  was  made  this  plaintiff  [or, 
defendant]  has  discovered  that  the  said  decree  [or,  order] 
omits  to  [state  omissions  required  to  be  rectified]. 

This  plaintiff  [or,  defendant],  therefore,  moves  the  court 
that  the  said  decree  [or,  order]  may  be  rectified  or  corrected 
by  [state  in  what  respect]  ;  or  that  the  court  [or,  as  may  be] 
will  please  to  make  such  other  order  in  the  premises  as  to  the 
court  [or,  as  it  may  be]  shall  seem  meet.  R.  &  R., 

Attorney  for . 


No.  665. 

Motion  for  Decree  on  Mandate.  (1) 

[Caption.] 

Now  comes  the  defendant,  C.  D.,  and  shows  to  the  honor- 
able court  that  the  above-named  cause  was  commenced  in  this 
court,  tried  and  decree  entered  against  defendant. 

That  the  defendant  appealed  said  cause  to  the  circuit  court 

of  appeals  for  the circuit,  where  the  decree  of  the  trial 

court  was  reversed,  and  said  court  of  appeals  in  its  opinion 
filed  says :  "Decree  reversed,  and  cause  remanded  for  further 
proceedings  not  inconsistent  with  this  opinion." 

That  on  the day  of ,  19 — ,  mandate  issued,  and  by 

order  of  this  court,  on  motion,  said  mandate  was  filed  and 
entered  of  record  in  said  cause, ,  19 — . 

Defendant  now  moves  the  court  for  final  decree  upon  the 
facts  found  by  the  honorable  trial  judge,  and  the  law  as  laid 
down  in  said  opinion  of  the  honorable  circuit  court  of  appeals, 
and  for  such  other  or  further  proceedings  as  maybe  necessary, 
that  justice  may  be  done  the  parties.  Y.  &  Y., 

Solicitors  for  Defendant,  C.  D. 

(1)  Desty's  Fed.  Proc,  Sec.  213;  Sibbald  v.  U.  S.,  12  Pet.  488,  9  L. 
ed.  1167,  R.  S.  U.  S.,  Sec.  701. 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  991 

No.  666. 

Order  Directing  that  Mandate  of  Circuit  Court  of  Appeals  be 
Spread  of  Record,  and  other  Orders  Consequent  There- 
upon. 

[Caption.] 

The  case  above  entitled  coming  on  for  hearing  on  this  day, 
all  parties  being  represented  by  counsel,  it  is  made  to  appear 
to  the  court  that  the  circuit  court  of  appeals  of  the  eighth  cir- 
cuit in  said  case  on  appeal  issued  its  mandate  of  date  Decem- 
ber 16,  1913,  and  filed  herein  December  17,  1913,  which  said 
mandate  is  in  the  hands  of  the  clerk  of  the  court ; 

On  due  consideration,  it  is  ordered  by  the  court  that  the  said 
mandate  be  spread  of  record  on  the  records  of  this  court,  and 
from  its  said  mandate  it  appears  the  decree  of  this  court  here- 
tofore entered  was  by  said  circuit  court  of  appeals  confirmed ; 

It  further  appears  to  the  court  that  the  costs  in  the  suit 
decided  by  said  mandate  have  been  paid ; 

It  is  further  ordered  by  this  court  that  the  receivers  hereto- 
fore appointed  by  this  court,  namely,  Conway  F.  Holmes, 
Eugene  Mackey  and  George  F.  Sharitt,  pursuant  to  the  decree 
of  the  court  heretofore  rendered  and  confirmed  by  said  court 
of  appeals,  on  or  before  January  1,  1914,  turn  over  to  the 
receivers  appointed  by  the  district  court  of  Montgomery 
county,  Kansas,  viz.,  John  M.  Landon  and  R.  S.  Litchfield, 
the  property  heretofore  described  and  referred  to  in  the  decree 
of  this  court  heretofore  entered  of  record,  viz :  all  of  the  prop- 
erty of  the  defendant.  Kansas  Natural  Gas  Company,  that  is 
within  the  state  of  Kansas,  except  such  property  as  has  been 
disposed  of  by  sale  and  except  such  moneys  as  have  been  and 
will  hereafter  be  expended  under  the  order  of  the  court;  and 
that  the  receivers  of  this  court  surrender  and  deliver  to  the 
said  receivers  of  the  district  court  of  Montgomery  county  all 
of  the  property  belonging  to  the  Kansas  Natural  Gas  Com- 
pany located  in  the  state  of  Kansas. 

It  is  further  ordered  that  of  the  money  now  in  the  hands  of 
the  receivers  of  this  court,  there  shall  be  turned  over  by  said 


992  SUITS   IN    EQUITY. 

receivers,  on  or  before  January  1,  1914,  to  the  said  receivers 
of  the  district  court  of  Montgomery  county,  Kansas,  the  sum 
of  seventy-five  thousand  dollars  ($75,000)  to  apply  on  ac- 
count; further  sums  to  be  hereafter  ordered  and  determined 
and  to  be  confirmed  by  a  later  order  of  this  court. 

It  is  further  ordered  that  the  receivers  heretofore  appointed 
by  this  court,  and  still  acting  in  that  capacity,  shall  forthwith 
proceed  and  continue  with  all  diligence  to  collect  all  moneys 
due  for  the  product  at  any  and  all  times  heretofore  sold  by 
them,  and  held  and  retained,  the  said  moneys  so  collected  to  be 
covered  by  an  order  hereafter  to  be  made  by  this  court. 

It  is  further  ordered  that  said  receivers  of  this  court  file  a 
verified  report  with  the  clerk  of  this  court,  on  or  before  Jan- 
uary 8,  1914,  to  be  taken  up  and  considered  by  this  court 
January  9,  1914. 

And  it  is  ordered  that  all  person  owing  the  receivers  of  this 
court,  take  notice  of  these  orders  and  make  said  payments 
accordingly. 

Done  and  ordered  of  record  this  December  30,  1913. 

Smith  McPherson,  Judge. 


No.  667. 

Petition  for  New  Trial.  (1) 

[Caption.] 

Your  petitioner  shows  this  honorable  court : 

First.  That  since  the  argument  and  decision  rendered  herein 
your  petitioner  has  discovered  certain  new  evidence  of  which 
he  did  not  know  and  could  not  have  known  by  reasonable  dili- 
gence at  the  time  of  the  hearing  of  this  cause.  The  evidence 
referred  to  consists  [here  state  the  nature  of  the  evidence  re- 
lied upon,  naming  the  witnesses  and  character  of  the  testimony 
which  petitioner  expects  to  introduce]. 

Wherefore  your  petitioner  prays  that  a  rehearing  may  be 
granted  herein  with  leave  to  take  such  additional  testimony  on 
the  matters  heretofore  referred  to,  and  that  the  court  may  fix 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  993 

a  time  within  which  such  testimony  may  be  taken  on  the  part 
of  your  petitioner  and  such  further  time  as  opposing  party 
may  take  evidence  to  rebut  the  same. 

And  your  petitioner  will  ever  so  pray.  R.  S., 

Petitioner. 

[Verification.] 

(1)  A  petition  for  rehearing  must  be  filed  at  the  term  at  which  the 
decree  was  entered.     Brooks  v.  R.  R.  Co.,  102  U.  S.  107. 

As  to  rehearing  on  the  ground  of  newly  discovered  evidence,  see 
Municipal  Signal  Co.  v.  Natl.  Elec.  Co.,  99  Fed.  569;  Robinson  v.  Sutter, 
11  Fed.  798;  Central  Trust  Co,  v.  Worcester  Cycle  Mfg.  Co.,  93  Fed. 
712,  35  C.  C.  A.  547. 

It  rests  in  the  discretion  of  the  judge  to  grant  or  refuse  a  rehear- 
ing.   Am.  Diamond  Rock  Boring  Co.  v.  Sheldens,  1  Fed.  870. 

Judicial  Code,  Sec.  269;  5  Fed.  Stat.  Ann.,  2d  ed.,  notes  at  pp.  1050 
to  1055. 


No.  668. 

Order  Denying  Motion  for  Rehearing. 

[Caption.] 

This  cause  coming  on  to  be  heard  on  the  petition  of  defend- 
ant for  a  rehearing  herein,  came  the  parties  plaintiff  and  de- 
fendant by  their  respective  attorneys  and  made  argument  to 
the  court  thereon. 

Whereupon  the  court  being  fully  advised,  it  is  ordered  that 
said  petition  for  a  rehearing  be  and  the  same  is  denied. 


No.  669. 

Motion  to  Retax  Costs. 
[Caption.] 

Now  comes  the  defendant  herein  and  moves  the  court  to 
retax  the  costs  in  the  above-named  cause  by  adding  to  the  same 
already  taxed  the  following  items,  to-wit : 

$20.00  as  docket  fee. 

$20.90  as  notary  fees  for  taking  depositions  of  S.  M.,  G.  H. 
and  L.  F. 


994  SUITS   IN    EQUITY. 

$15.00  as  notary  fees  for  taking  depositions  of  F.  L.,  B.  R. 
and  E.  H. 

$15.00  as  attorney's  fees  on  the  depositions  of  the  six  wit- 
nesses above  named.  Y.  &  Y., 

Solicitors  for  Defendant. 

[An  affidavit  showing  that  the  notary  fees  had  been  actually 
paid  should  be  tiled  with  this  motion.] 


No.  670. 

Cost  Bill. 


See  form  No. 


No.  671. 

Final  Record  in  Equity. 

The  plaintiff  in  the  above  entitled  cause  filed  his  bill  of  com- 
plaint, which  is  hereunto  annexed,  on day  of ,  and 

the  writ  of  subpoena  was  thereupon  issued  and  returned  per- 
sonally served. 

An  appearance  was  duly  entered  for  the  defendant  by  R.  Y., 

his  solicitor,  and  on  the  first  Monday  of thereafter,  an 

answer  to  said  bill  of  complaint  was  filed,  the  same  being  here- 
unto annexed. 

On  the  first  Monday  of thereafter,  the  plaintiff  filed  a 

replication,  the  same  being  hereto  annexed. 

On  the day  of ,  an  order  of  the  court  granting  to 

the  plaintiff  a  preliminary  injunction  as  prayed  for  in  the  bill 
of  complaint  was  filed  and  entered,  which  said  order  is  here- 
unto annexed. 

Testimony  was  thereafter  taken  by  the  respective  parties 
and  filed  in  the  clerk's  office  of  the  said  district  court. 

Afterwards,  and  at  the  term  of  of  said  court, 

present  the  Honorable  G.  W.,  district  judge,  the  said  cause 
came  on  to  be  heard  on  the  pleadings  and  proofs,  and  was 

argued  by  counsel.    On  the day  of ,  a  decree  of  said 

court  was  filed  and  entered  in  favor  of  the  plaintiff,  by  which 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  995 

it  was  adjudged  that  a  perpetual  injunction  should  issue 
against  the  defendant,  and  that  an  accounting  be  had  before 
C  G.,  master  of  said  court;  the  said  order  being  hereunto 
annexed. 

On  the day  of ,  the  said  master  filed  his  report, 

upon  which,  and  on  the  day  of  ,   the  said  court 

caused  its  final  decree  to  be  entered  herein,  the  same  being 
hereunto  annexed. 

And  the  costs  having  been  taxed  by  the  clerk  at dollars, 

the  process,  pleadings  and  decrees,  together  with  other  papers 
filed  in  said  cause,  are  duly  annexed  hereunto. 

Wherefore  let  the  said  A.  B.  recover  of  said  C.  D.  the  sum 

of dollars,  as  adjudged  in  said  final  decree,  together  with 

the  further  sum  of dollars,  the  cost  and  charges  as  taxed, 

making  in  the  aggregate  the  sum  of dollars. 

Signed  and  enrolled  this day  of .  B.  R., 

Clerk  of  the  District  Court  of  the  United  States  for 
the District  of . 

[Seal] 


No.  672. 

Order  making  Fidelity  Title  and  Trust  Co.  a  Party  Plaintiff, 

etc. 

[Caption.] 

And  now,  October  19,  1912,  this  cause  came  on  for  further 
hearing  upon  the  bill  of  complaint  filed  and  upon  the  answer 
of  the  respondent  thereto,  and  upon  the  petition  and  bill  of 
complaint  of  the  intervener.  Fidelity  Title  and  Trust  Com- 
pany, of  Pittsburgh,  Pennsylvania,  and  upon  the  answer  of 
the  defendant,  Kansas  Natural  Gas  Company,  thereto  under 
its  corporate  seal  and  sworn  to  by  its  president  and  secretary, 
admitting  and  confessing  the  truth  of  all  statements,  aver- 
ments and  charges  in  the  said  petition  and  bill  of  complaint  of 
the  intervener,  and  also  the  right  of  the  intervener  to  the  relief 
prayed  for  and  joining  in  the  prayer  of  the  intervener  for  the 


996  SUITS   IN    EQUITY. 

appointment  of  a  receiver,  and  waiving  all  notice  of  the  appli- 
cation therefor,  the  intervener,  appearing  by  its  solicitor, 
Charles  Blood  Smith,  Esq.,  of  Topeka,  Kansas,  and  the  re- 
spondent by  its  solicitor,  John  J.  Jones,  Esq.,  of  Chanute, 
Kansas,  and  the  court  being  fully  advised  as  to  the  premises, 

It  is  now  ordered,  adjudged  and  decreed : 

That  the  prayer  of  the  Fidelity  Title  and  Trust  Company, 
the  intervener,  be  granted  and  that  it  be  and  now  is  hereby 
made  a  party  plaintiff  on  the  record  in  the  above  entitled  cause 
nunc  pro  tunc  as  of  October  7,  1912,  and  as  fully  to  all  intents 
and  purposes  as  though  such  from  the  beginning :    And 

That  the  order  of  this  court  entered  October  9,  1912,  with 
all  its  appointments,  requirements,  injunctions  and  directions, 
be  and  the  same  is  now  reordered,  readjusted  and  redecreed; 
and 

The  presentation  of  the  petition  of  intervention  and  the 
filing  of  the  bill  of  complaint  of  the  intervener,  and  all  pro- 
ceedings thereof,  being  for  the  common  good  of  all  stock- 
holders, bondholders  and  creditors  of  the  defendant,  the  costs 
and  expenses  thereof,  including  the  bill  of  the  solicitor,  are 
directed  to  be  paid  by  the  receivers  out  of  the  common  fund, 
but  such  bill  of  the  solicitor  shall  be  first  presented  to  and 
approved  by  this  court.  John  C.  Pollock, 

Judge. 


No.  673. 

Order  making  Additional  Parties  Defendants. 

[Caption.] 

Now  on  this  11th  day  of  March,  1913,  the  above  entitled 
cause  came  on,  on  the  application  of  the  plaintiff  for  leave  to 
file  its  supplemental  petition  and  make  additional  defendants 
herein  as  prayed  for  in  said  second  supplemental  petition,  and 
the  court  having  considered  said  petition  and  the  allegations 
thereof  doth  grant  and  allow  said  application,  and  said  defend- 
ants are  hereby  made  defendants  to  this  suit,  and  the  decree 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  997 

heretofore  and  on  February  15,  1913,  rendered  enjoining  the 
various  defendants  from  numerous  acts  therein  mentioned  is 
hereby  extended  to  and  made  to  apply  to  and  binding  upon 
said  defendant,  The  Fidelity  Trust  Company,  trustee,  of  Phila- 
delphia, Pennsylvania :  The  Fidelity  Title  and  Trust  Company, 
trustee,  of  Pittsburg,  Pennsylvania ;  The  Delaware  Trust  Com- 
pany, trustee;  Braden,  Bartlett  &  Macbeth,  trustees  Kansas 
City  Gas  Company,  a  corporation ;  Wyandotte  County  Gas 
Company,  a  corporation. 


No.  674. 

Nunc  Pro  Tunc  Order  Admitting  Defendants. 

[Captioit.] 

Now  on  this  the  22nd  day  of  September.  1915,  it  appearing 
to  the  court  that  heretofore,  and  on  the  24th  day  of  August, 
1914,  Charles  F.  Bissett,  and  three  others  hereinafter  named, 
were  upon  their  own  application  permitted  by  the  court  to 
intervene  and  become  parties  defendant  to  this  action,  and  on 
said  day  filed  their  answer  to  the  amended  bill  of  complaint  of 
the  complainant,  and  it  further  appearing  that  no  formal  order 
was  made  and  entered  making  said  persons  parties  defendant, 

It  is  now.  as  of  the  24th  day  of  August,  1914,  ordered  that 
the  said  Charles  F.  Bissett,  Taxaway  Oil  Company,  a  corpora- 
tion ;  F.  L.  Moore  and  J.  S.  Cosden  have  leave,  and  leave  is 
hereby  granted  to  them,  to  intervene  in  this  suit  and  to  appear 
herein  as  defendants  in  the  same  manner  and  with  like  effect 
as  if  they  were  named  in  the  amended  bill  of  complaint  as 
defendants  having  or  claiming  an  interest. 

Ralph  E.  Campbell,  Judge. 


998  SUITS  IN    EQUITY. 

No.  675. 

Order  Granting  Leave  to  Intervene  and  File  Answer  and 

Cross-Petition. 
[Caption.] 

On  this  the  23rd  day  of  October,  1914,  coming  on  to  be 
heard  in  Muskogee  the  application  of  Fulhohchee  Barney, 
Siah  Barney,  Tommy  Barney  and  Mollie  Barney,  for  leave  to 
intervene  in  this  cause  and  to  become  parties  defendant  herein 
and  to  file  an  answer  and  cross-complaint,  said  parties  appear- 
ing by  Turner  &  Turner  and  Owen  &  Stone,  their  attorneys, 
and  said  plea  of  intervention  having  been  heard  by  the  court, 

It  is  ordered  and  adjudged  that  leave  be  granted  for  the 
said  parties  to  intervene  herein  and  to  become  defendants  in 
this  cause. 

And  now  comes  said  Fulhohchee  Barney,  Siah  Barney, 
Tommy  Barney  and  Mollie  Barney,  by  their  said  attorneys, 
leave  of  the  court  having  been  first  had  and  obtained,  and  file 
their  answer  to  the  complainant's  bill  of  complaint  and  their 
cross-petition  against  the  other  defendants. 

Ralph  E.  Campbell,  Judge. 


No.  676. 

Order  Overruling  Motion  to  Strike  Joint  Answer  of  Defend- 
ants and  Intervenors. 
[Caption.] 

On  this  4th  day  of  May,  1915,  came  on  to  be  heard  the 
motion  of  the  complainant,  the  United  States  of  America,  to 
strike  the  joint  answer  of  the  defendants  and  interveners, 
Bessie  Wildcat  et  al.,  and  the  court  having  heard  the  argu- 
ments of  counsel  and  being  advised  in  the  premises. 

It  is  ordered  that  said  motion  to  strike  the  joint  answer  of 
the  defendants  and  interveners  be  and  the  same  is  hereby  over- 
ruled. To  which  action  of  the  court  in  overruling  said  motion 
the  complainant,  the  United  States  of  America,  duly  excepted 
and  the  exceptions  were  allowed  by  the  court. 


NOTICES,    MOTIONS,   ORDERS,   DECREES,   ETC.  999 

No.  677. 

Order  of  Severance. 
[Caption.] 

Now  on  this  5th  day  of  November,  1917,  this  cause  came 
on  to  be  heard  upon  the  joint  motion  of  the  Kansas  City  Gas 
Company,  the  Wyandotte  County  Gas  Company,  Fidelity 
Trust  Company  and  The  Kansas  City  Pipe  Line  Company, 
and  the  motion  of  the  City  of  Kansas  City,  Missouri,  and  the 
motion  in  open  court  of  the  public  service  commission  of  Mis- 
souri for  an  order  of  severance  on  appeal  in  the  above  entitled 
cause  and  was  argued  by  counsel,  and  thereupon,  upon  con- 
sideration thereof: 

It  is  found  by  the  court  that  demand  in  writing  has  been 
duly  made  by  the  above-named  parties  upon  all  their  co-defend- 
ants to  appeal  or  join  in  appeals  from  the  final  judgment  and 
decree  entered  in  the  above  entitled  case  to  the  supreme  court 
of  the  United  States,  and  that  all  said  co-defendants  have  been 
duly  notified  in  writing  to  appear  and  show  cause  why  order 
of  severance  should  not  be  made,  and  have  failed  to  appear,  or 
have  appeared  and  have  refused  to  join  in  the  appeals  of  the 
parties  above  named,  and, 

It  is  further  found  that  the  [here  name  the  parties]  have 
indicated  their  desire  to  appeal  or  join  in  appeals  in  this  cause, 
and  that  they  are  entitled  to  a  severance  from  their  other  co- 
defendants  in  this  cause ;  therefore 

It  is  ordered,  that  the  above-named  defendants  be  and  they 
are  hereby  granted  a  severance  from  all  their  co-defendants 
for  the  purpose  of  an  appeal,  or  appeals,  from  the  final  judg- 
ment and  decree  entered  in  the  above  entitled  cause  to  the 
supreme  court  of  the  United  States. 

It  is  further  found  and  ordered  that  the  rights  ol  the  Kansas 
City  Gas  Company,  The  Wyandotte  County  Gas  Company, 
Fidelity  Trust  Company  and  The  Kansas  City  Pipe  Line  Com- 
pany are  so  separate  from  the  rights  of  all  their  co-defendants 
that  they  are  entitled  to  and  are  hereby  granted  a  severance 


1000 


SUITS    IN    EQUITY. 


from  all  their  co-defendants  for  the  purpose  of  prosecuting  a 
joint  appeal  from  the  final  judgment  and  decree  of  this  court 
in  this  cause,  entered  on  August  13,  1917,  to  the  supreme  court 
of  the  Unit-cd  States.  John  C.  Pollock, 

District  Judge. 

No.  678. 

Writ  of  Possession  or  Assistance.  (1) 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  United  States  of  America  to  R.  P., 
Special  Master  Commissioner  of  the  District  Court  of 
said  District,  Greeting: 

Whereas,  according  to  the  tenor  and  true  meaning  of  a 
decree  in  equity  in  a  certain  cause  depending  in  our  district 
court  of  the  United  States  within  and  for  the  district  afore- 
said, wherein  A.  B.  is  plaintiff  and  C.  D.  and  others,  defend- 
ants, it  was  decreed  that  C.  D.  deliver  possession  to  A.  B.  of 
the  messuage,  lands  and  premises,  situate  in  the  township  of 

,  in  the  county  of ,  and  state  of ,  and  bounded 

and  described  as  follows:  [set  forth  description]. 

The  whole  tract  above  described  being  the  same  premises 
heretofore  conveyed  to  T.  F.,  and  by  him  conveyed  to  C.  D. 

by  deed  dated  the  day  of  ,  1894,  and  recorded  in 

book ,  page ,  of  said  county  records.     Yet  he, 

the  said  C.  D.,  and  others,  ill-disposed  persons,  his  accom- 
plices, have  refused  to  pay  obedience  to  said  decree,  and  detain 
and  keep  possession  of  the  said  messuage,  lands  and  premises, 
in  manifest  contempt  of  us,  and  our  said  court. 

Know  ye  therefore,  that  we  being  willing  and  desirous  that 
justice  should  be  done  to  the  said  A.  B.  in  this  behalf,  do  give 
unto  you  full  power  and  authority  to  place  and  put  the  said 
A.  B.  and  his  heirs  and  assigns,  without  delay,  into  the  full, 
peaceable  and  quiet  possession  of  all  and  singular  the  said 
messuage,  lands  and  premises,  with  their  appurtenances,  ac- 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1001 

cording  to  the  true  intent  and  meaning  of  the  said  decree ;  and 
herein  you  are  not  in  any  wise  to  fail. 
[Add  teste.] 

(1)  See  Foster's  Fed.  Prac,  5th  ed.,  Sec.  440;  9th  Equity  Rule  and 
Desty's  Fed.  Proc,  p.  1140;  Corner  v.  Felton,  61  Fed.  735.  22  U.  S.  App. 
313;  Terrill  v.  Allison,  21  Wall.  289. 


No.  679. 

Final  Decree  Dismissing  Bill.(l) 
[Caption.] 

This  cause  having  come  on  to  be  heard  this  day  of 

— ,  upon  pleadings  and  proofs,  and  Mr.  R.  X.  having  been 


heard  on  the  part  of  the  plaintiff,  and  Mr.  R.  Y.  on  the  part 
of  the  defendant,  and  due  deliberation  having  been  had.  it  is 
ordered,  adjudged  and  decreed  that  the  said  bill  of  complaint 
herein  be  and  the  same  is  hereby  dismissed,  with  costs  to  the 
defendant  to  be  taxed. 
(1)  See  Equity  Rule  71. 


No.  680. 

Decree  of  Dismissal  of  Bill  (Another  Form).(l) 
[Caption.] 

This  Criuse  coming  on,  etc.,  this  court  doth  order  that  the 
plaintiff's  bill  do  stand  dismissed  out  of  this  court  [if  these  are 
other  defendants  who  do  not  appear,  or  if  dismissed  against 
one  of  several  defendants,  as  against  the  defendant,  C.  D.], 
with  costs  to  be  paid  by  the  plaintiff,  A.  B.,  to  the  said  de- 
fendant, C.  D.,  and  to  be  taxed  by  the,  etc.  [iti  case  the  parties 
differ] . 

(1)  See  Equity  Rule  71. 


1002 


SUITS    IN    EQUITY. 


No.  681. 

Decree  of  Dismissal  without  Prejudice,  Stating  Reasons.  (1) 

[Caption."] 

This  cause  came  on  to  be  heard  at  tin's  term  and  was  argued 
by  counsel;  and  thereupon,  upon  consideration  thereof,  it  is 
ordered,  adjudged  and  decreed  by  the  court  that  the  plaintifif 
is  entitled  to  no  specific  lien  or  security  upon  either  of  the 
vessels  mentioned  in  the  plaintiff's  bill,  and  has  no  equity  to 
be  relieved  in  respect  thereof,  and  that  his  bill  be  dismissed, 
with  costs  to  the  defendants,  without  prejudice  to  his  right  to 
come  in  and  receive  a  dividend  of  the  said  R.'s  estate  in  com- 
mon with  the  other  creditors  of  the  said  estate. 

(1)  See  Equity  Rule  71. 


No.  682. 

Decree  Dismissing  Bill  with  Prejudice. 
[Caption.] 

On  this  the  8th  day  of  May,  1915,  at  this  term,  this  cause 
came  on  further  to  be  heard,  and  the  evidence  having  been 
heard,  the  case  having  been  argued  by  counsel,  thereupon, 
upon  consideration  thereof,  the  court  finds  the  issues  against 
the  complainant  and  in  favor  of  the  defendants  and  intervenors 
who  answered  to  the  complainant's  bill  of  complaint  as 
amended. 

It  is  therefore,  ordered,  adjudged  and  decreed  that  the 
complainant's  bill  of  complaint  as  amended  be,  and  the  same 
is  hereby,  dismissed  with  prejudice  against  another  action 
upon  the  same  ground,  to  all  of  which  the  complainant  excepts 
and  its  exception  is  allowed,  and  in  open  court,  and  in  the 
presence  of  counsel  of  record  for  the  defendants  and  inter- 
venors, the  complainant  gives  notice  of  appeal. 

Ralph  E.  Campbell,  Judge. 


NOTICES,    MOTIONS,   ORDERS,   DECREES,    ETC.  1003 

No.  683. 

Order  Sustaining  Motion  to  Dismiss,  and  Decree  of 
Dismissal.  ( 1 ) 
[Caption.l 

At  this  7th  da}^  of  October,  1916.  said  plaintiflF,  by  E.  A. 
Walton  and  T.  D.  ^^^alton  his  solicitors,  and  the  defendant, 
Denver  &  Rio  Grande  Railroad  Company,  by  Henry  McAllis- 
ter, Jr.,  and  W.  D.  Riter,  its  solicitors,  and  the  defendants, 
Utah  Fuel  Company  and  Pleasant  Valley  Coal  Company,  by 
A.  C.  Ellis,  their  solicitor,  also  comes.  And  the  motion  of  The 
Denver  &  Rio  Grande  Railroad  Company,  and  the  motion  of 
the  Utah  Fuel  Company  and  Pleasant  Valley  Coal  Company, 
to  dismiss  this  suit  and  the  bill  herein,  coming  on  now  regu- 
larly to  be  heard,  are  argued  by  counsel,  and  the  court  having 
duly  considered  the  same  and  being  now  well  advised  in  the 
premises  doth  sustain  said  motions.  Whereupon  said  plain- 
tiff, by  his  solicitor,  saith  that  he  will  elect  and  abide  his  bill 
of  complaint  here,  and  thereupon  it  is  ordered  by  the  court 
that  this  cause  be  and  the  same  is  hereby  dismissed  at  plain- 
tiff's costs. 


(Decree  of  District  Court,  February  21,  1917.) 

This  cause  having  been  heard  upon  the  amended  bill  of 
complaint  and  defendants'  motions  to  dismiss  the  same,  and 
said  motions  to  dismiss  having  been  sustained,  and  the  plain- 
tiff having  elected  to  stand  upon  his  pleadings,  and  the  court 
being  fully  advised  in  the  premises. 

It  is  by  the  court  ordered,  adjudged  and  decreed: 
That  the  amended  bill  of  complaint  of  the  plaintiff  be  and 
the  same  is  hereby  dismissed  for  want  of  equity. 

(1)   Notice  to  parties  and  solicitors  is  provided  in  Equity  Rule  4. 


1004  SUITS   IN    EQUITY. 

No.  684. 

Order  Dismissing  Complaint  upon  Special  Appearance  to 

Object  to  Jurisdiction. 
[Caption.] 

This  matter  coming  on  to  be  heard  by  the  court  upon  motion 
by  defendants,  appearing  specially  for  that  purpose,  to  dis- 
miss the  complaint  for  lack'  of  jurisdiction,  and  after  hearing 
Ben  A.  Matthews,  Esq.,  assistant  United  States  attorney 
in  support  of  said  motion,  and  Charles  Recht,  Esq.,  attorney 
for  plaintifif,  in  opposition  thereto,  and  due  deliberation  hav- 
ing been  had  thereon,  and  the  court  having  handed  down 
its  opinion  sustaining  said  motion  and  holding  this  court 
to  be  without  jurisdiction. 

Now,  upon  motion  of  Francis  G.  Cafifey,  Esq.,  United 
States  attorney  for  the  southern  district  of  New  York, 
attorney  for  the  defendants,  appearing  specially  for  that 
purpose,  it  is 

Ordered,  adjudged  and  decreed  that  the  bill  of  complaint 
herein  be  and  the  same  hereby  is  dismissed  for  lack  of  juris- 
diction, without  costs. 

A.  B.,  Judge. 


No.  685. 

Decree  Dismissing  Parties  Defendant  before  Hearing. 

[Caption.] 

On  this  the  8th  day  of  December,  A.  D.  1916,  came  on  to 
be  heard  the  above  numbered  and  entitled  cause,  in  which 
Sabine  Hardwood  Company,  Limited,  is  complainant,  and  in 
which  West  Lumber  Company,  a  corporation  organized  under 
the  laws  of  the  state  of  Texas,  and  W.  T.  Carter,  E.  A. 
Carter  and  Jack  Thomas,  composing  the  firm  of  W.  T.  Carter 
&  Brother,  Ray  Wilson,  J.  E.  Bruce,  R.  B.  Baldwin,  Jas.  E. 
Hill,  Jr.,  Wm.  Carlisle  and  Geo.  W.  Pennell,  composing  the 
firm  of  Wm.  Carlisle  &  Company,  and  L.  M.  Oliver  are  de- 
fendants, and  J.  C.  Feagin  is  intervenor,  and  the  complainant 
then  and  there,  in  open  court  dismissed  L.  M.  Oliver  from 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  1005 

this  cause,  it  appearing  that  said  Oliver  had  no  interest  in  the 
subject-matter  of  this  suit,  and,  it  is,  therefore,  ordered, 
adjudged  and  decreed  that  said  L.  M.  Oliver  be  dismissed 
from  this  cause,  and  go  hence  without  day,  and  that  all  costs 
incident  to  his  being  made  a  party  to  this  cause  of  action  be 
taxed  against  the  complainant  herein. 

It  was  further  made  known  to  the  court  by  their  written 
disclaimers  filed  in  this  cause,  that  Jas.  E.  Hill,  Jr.,  disclaimed 
any  interest  in  this  cause  of  action,  or  the  subject-matter 
thereof,  and  that  Wm.  Carlisle  and  Geo.  W.  Pennell.  com- 
posing the  firm  of  Wm.  Carlisle  &  Company,  had  also  dis- 
claimed any  interest  in  this  cause  of  action. 

It  is,  therefore,  ordered,  adjudged  and  decreed  by  the 
court  that  said  defendants,  Jas.  E.  Hill,  Jr.,  Wm.  Carlisle 
and  Geo.  W.  Pennell,  composing  the  firm  of  Wm.  Carlisle 
&  Company,  having  no  interest  in  the  subject-matter  of  this 
litigation  which  can  be  partitioned  to  them,  they  are,  there- 
fore, dismissed  from  this  cause  on  their  disclaimers,  and  they 
go  hence  without  day  and  recover  as  against  the  complainant 
herein  all  costs  in  this  behalf  incurred  by  them,  and  all  costs 
incurred  in  making  them  parties  defendant  to  this  cause  shall 
be  taxed  against  the  complainant  herein. 


No.  686. 

Decree  for  Amount  Due  under  a  Contract  and  Creating  a  Lien 

on  Property  to  Secure  the  same. 

[Caption.] 

The  above  entitled  matter  was  duly  brought  on  for  trial 
and  hearing  before  the  court,  the  undersigned  district  judge 
presiding,  on  the  19th  day  of  March,  1914,  Messrs.  M.  H. 
Boutelle  and  A.  M.  Higgins  appearing  as  solicitors  for  com- 
plainant and  Messrs.  S.  H.  E.  Freund  and  George  T.  Simp- 
son as  solicitors  for  the  defendant. 

The  evidence  of  the  respective  parties  having  been  season- 
ably offered,  the  case  was  continued  for  final  hearing  and 
argument  and  by  agreement  of  the  parties  was  regularly  as- 
signed for  final  argument  before  the  court  on  the  20th   day 


1006  SUITS   IN    EQUITY. 

of  December,  1915,  at  which  time  the  parties  appeared  by 
their  respective  solicitors  and  the  cause  was  finally  argued 
and  submitted. 

The  court  having  given  the  matter  due  consideration  it 
appears  from  the  pleadings  that  on  the  1st  day  of  February, 
1890,  the  defendant,  being  the  owner  of  a  dock  property 
located  in  the  city  of  Superior,  Wisconsin,  leased  the  same  by 
written  instrument  of  lease,  to  the  Silver  Creek  and  Morris 
Coal  Company,  to  all  the  rights  and  interests  of  which  last 
mentioned  lessee  the  present  complainant  succeeded  shortly 
after  the  execution  of  said  lease.  That  upon  the  expiration 
of  the  original  term  of  the  said  lease,  the  same  was  renewed 
to  the  complainant  for  a  further  period  of  ten  (10)  years, 
such  renewal  expiring  on  the  1st  day  of  July,  1910,  at,  or 
about,  which  last  named  date,  by  agreement  of  the  parties, 
the  lease  was  continued  from  month  to  month  until  the  first 
day  of  November,  1910,  at  which  date  it  was  regularly  ter- 
minated. 

That  by  one  of  the  covenants  of  said  original  lease  ex- 
tended and  made  operative  in  the  renewal  thereof,  the  de- 
fendant covenanted  and  agreed  to  purchase  from  the  lessee 
all  of  the  machinery  and  apparatus  erected  by  lessee  on  said 
dock  with  the  lessee's  approval  and  consent  during  the  term 
of  the  lease  and  to  pay  therefor  within  thirty  (30)  days  of 
the  expiration  of  said  lease,  the  fairly  appraised  valuation  of 
such  machinery  and  apparatus,  to  be  determined  by  arbitra- 
tion, all  as  more  fully  disclosed  by  the  pleadings  as  aforesaid. 

That  various  machinery  and  apparatus  was  installed  on  the 
dock  pursuant  to  the  terms  of  said  lease  and  covenant  dur- 
ing the  term  of  said  lease  for  the  purpose  of  carrying  on  and 
conducting  the  business  contemplated  by  said  lease  to  be 
carried  on  and  conducted  thereon,  and  that  the  same  was 
installed  with  the  knowledge  and  consent  of  the  defendant 
and  continued  thereon  at  the  date  of  the  lease's  termination, 
all  thereof  constituting  a  complete  operating  plant  of  its  kind. 

That  following  the  termination  of  such  lease,  arbitration 
was  attempted  between   the   parties   for   the  purpose  of  ap- 


NOTICES,    MOTIONS,   ORDERS,   DECREES,   ETC.  1007 

praising  the  value  of  such  machinery  and  apparatus,  said 
arbitration  proving  abortive  and  it  was  thereupon  mutually 
agreed  between  the  parties,  as  appears  more  fully  from  the 
pleadings,  that  the  complainant  should  surrender  possession 
of  said  plant  without  such  surrender  working  any  prejudice 
to  its  rights  under  the  terms  of  said  covenant  and  that  the 
defendant  should  account  to  the  complainant  for  the  fair 
value  of  said  machinery  and  apparatus  in  an  appropriate  pro- 
ceeding for  such  accounting  and  to  determine  the  value  there- 
of and  that  the  complainant  should  be  entitled  to  recover 
against  defendant  such  amount  as  should  be  decreed  as  result 
of  such  accounting  which  should  be  and  constitute  a  lien  on 
said  leased  premises.  And  that  it  was  also  mutually  agreed 
in  pursuance  of  the  matters  last  recited,  that  any  arbitration 
for  the  purpose  of  determining  the  value  of  said  machinery 
and  apparatus  should  be  abandoned. 

That  previous  to  the  submission  of  this  cause  to  the  court, 
a  written  stipulation  was  made  and  entered  into  between  the 
parties,  and  made  a  matter  of  record  herein,  embracing  an 
inventory  of  the  property  above  referred  to  and  for  which  the 
defendant  should  be  required  to  account.  That  at  the  opening 
of  the  trial  it  was  mutually  agreed  between  the  parties  that 
notwithstanding  said  stipulation,  the  complainant  should  be 
permitted  to  show  all  of  the  property  claimed  by  it  as  com- 
prised within  the  terms  of  the  said  covenant  and  for  which 
the  defendant  should  be  held  to  account  in  this  proceeding, 
whether  within  or  without  such  inventory,  but  without  preju- 
dice to  the  defendant's  right  to  assert  that  any  additional 
property  not  covered  or  embraced  in  such  stipulation  and  in- 
ventory was  not  covered  by  the  terms  of  the  covenant  afore- 
said and  that  defendant  was  not  therefore  obligated  to  ac- 
count therefor. 

From  the  foregoing  facts  shown  by  the  pleadings  or  em- 
braced within  the  stipulations  or  agreements  of  the  respec- 
tive parties,  either  in  writing  or  in  open  court,  as  aforesaid, 
and  upon  the  evidence  adduced  before  the  court  herein,  it  is 
found  and  determined  as  follows : 


1008  SUITS   IN   EQUITY. 

That  under  the  covenants  of  said  lease,  the  defendant  was 
obligated  to  purchase  from  the  complainant  at  the  expiration 
thereof,  the  machinerj-  and  apparatus  constructed,  installed 
and  erected  during  the  term  of  said  lease  on  said  dock  with 
defendant's  consent  and  that  the  terms  "machinery"  and 
"apparatus"  as  incorporated  in  said  covenant  were  intended 
to  and  did  embrace  all  of  the  several  essential  and  component 
parts  of  the  entire  operating  plant,  both  mechanical  and 
structural,  thereon  constructed  or  installed  by  the  lessee  dur- 
ing the  term  of  said  lease  and  which  were  constructed  and 
installed  on  said  dock  at  the  time  of  the  termination  of  said 
lease  and  the  possession  whereof  came  to  defendant  on  such 
termination.  That  the  fair  valuation  of  said  property  at  the 
date  of  the  termination  of  said  lease  and  in  the  condition  in 
which  said  property  was  surrendered  to,  and  received  by,  the 
defendant,  was  the  sum  of  thirty-seven  thousand,  five  hun- 
dred (37,500)  dollars. 

In  accordance  with  the  stipulations  and  the  pleadings  and 
the  facts  as  thus  ascertained : 

It  is  therefore  ordered  and  decreed  that  the  defendant  is 
held  to  account  to  the  complainant  in  the  sum  of  thirty-seven 
thousand,  five  hundred  (37,500)  dollars,  with  interest  there- 
on at  the  rate  of  six  (6)  per  cent,  per  annum  from  and  after 
the  date  of  filing  the  bill  herein,  viz:  March  19,  1914,  and 
for  the  costs  and  disbursements  of  this  proceeding  to  be  here- 
after taxed ;  and 

It  is  further  ordered  and  decreed  that  the  complainant  is 
entitled  to  a  lien  on  said  leased  premises  in  the  amount 
herein  ascertained  to  secure  the  payment  of  said  sum. 

The  court  will  reserve  jurisdiction  of  the  proceeding  to 
make  such  other  and  further  orders  in  the  premises  as  shall 
be  necessary  to  make  the  lien  herein  decreed  effectual  in  the 
event  of  non-payment  by  the  defendant  of  the  sum  herein 
ascertained  and  decreed. 

By  the  court, 

Page  Morris, 
United  States  District  Judge. 


NOTICES,    MOTIONS,    ORDERS,   DECREES,  ETC.  1009 

No.  687. 

Decree  Vesting  Title  Subject  to  Easement  for  Alley  Purposes, 
and  Enjoining  from  Obstructing,  etc. 

[Caption.] 

This  cause  standing  ready  for  Tieanng  and  having  been 
heard  and  duly  considered,  it  is  this  11th  day  of  October, 
1915,  ordered,  adjudged  and  decreed  that  the  title  to  the 
strip  of  land  described  in  the  bill,  as  follows :  *  *  * 
is  vested  in  the  defendants  subject  to  a  perpetual  easement 
for  alley  purposes  in  the  plaintiff  in  fee  simple. 

That  the  structures  described  in  the  bill,  erected  by  the 
defendants,  shall  be  removed  by  them  at  their  cost  and  ex- 
pense on  or  before  the  15th  day  of  October,  1915. 

That  the  said  defendants  and  all  persons  claiming  under 
them  be,  and  they  are  hereby,  perpetually  enjoined  from  in 
any  wise  obstructing  the  use  of  said  easement  of  alleyway 
over  said  ten  (10)  foot  strip. 

That  the  plaintiff  recover  against  the  defendants  the  costs 
in  this  cause  to  be  taxed  by  the  clerk  and  have  execution 
thereof  as  at  law. 

By  the  court, 

Walter  I.  McCoy, 
Justice 


No.  688. 
Decree  Cancelling  Release  from  Liability  for  Personal  Injury. 

[Caption.] 

This  cause  came  on  to  be  heard  at  this  term  and  was 
argued  by  counsel ;  and  thereupon,  upon  consideration  thereof, 
it  was  ordered,  adjudged  and  decreed  as  follows,  viz: 

That  the  release  set  forth  in  the  complaint  herein  be  and 
the  same  is  hereby  upheld  and  sustained  insofar  as  it  pur- 
ports to  release  any  and  all  claims  for  damages  for  injury 
to  the  right  foot  and  for  injuries  to  the  arm  and  shoulder. 


1010  SUITS   IN    EQUITY. 

It  is  further  considered,  adjudged  and  decreed  that  said 
release  be  and  the  same  is  hereby  cancelled,  annulled,  set 
aside  and  held  for  naught  insofar  as  it  purports  to  release 
any  claim  for  damages  for  other  injuries  complained  of  and 
set  forth  in  the  complaint  herein. 

It  is  further  ordered  that  the  plaintiff  have  and  recover 
herein  his  costs  to  be  taxed  and  that  execution  issue  therefor. 

To  all  of  which  the  defendant  excepts  and  its  exception  is 
allowed. 

Done  in  open  court  this  14th  day  of  November,  1916. 

[Signed]  Frank  H.  Rudkin, 

Judge. 


No.  689. 

Decree  Removing  Cloud  upon  Title. 
[Caption.] 

This  cause  having  been  regularly  called  for  hearing  and 
tried  by  the  court,  was  heard  upon  the  bill,  answer,  exhibits, 
agreements  of  parties,  proof  in  the  case,  and  arguments  of 
counsel  and  the  court  being  fully  advised  in  the  premises: 

It  is  now,  therefore,  hereby  ordered,  adjudged  and  decreed 
that  the  plaintiff  have  judgment  as  prayed  for  in  his  com- 
plaint herein  against  the  defendants  and  each  and  all  of  them ; 
that  all  adverse  claims  of  the  defendants  and  each  of  them 
and  all  persons  claiming  said  premises  or  any  part  thereof, 
through  or  under  said  defendants,  or  either  of  them,  are 
hereby  adjudged  and  decreed  to  be  invalid  and  groundless; 
and  that  the  plaintiff  be  and  he  is  hereby  adjudged  and  de- 
clared to  be  the  true  and  lawful  owner  of  the  land  described 
in  the  complaint,  and  hereinafter  described,  and  every  part 
and  parcel  thereof,  and  that  his  title  thereto  is  adjudged  to 
be  quieted  against  all  claims,  demands,  or  pretensions  of  the 
defendants  or  either  of  them,  who  are  hereby  perpetually 
estopped  from  setting  up  any  claims  thereto  or  any  part 
thereof.     Said  premises  are  bounded  and  described  as  follows : 

(Here  follows  description.) 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1011 

And  it  is  hereby  further  ordered,  adjudged  and  declared 
that  the  plaintiff  do  have  and  recover  his  costs,  hereby  taxed 
at  dollars,  against  the  defendant.  r*     a     t 

Judge. 


No.  690. 

Order  Directing  that  Certain  Records  of  a  Named  State  Court 
be  Filed  and  made  a  Part  of  the  Record  in  a  Suit  Pending 
in  Federal  Court. 

[Caption.] 

Now  on  this  24th  day  of  January.  A.  D.  1914,  each  and 
every  the  following  pamphlets,  papers  and  documents  having 
been  before  the  court  and  considered  by  the  court  in  this 
cause,  it  is  hereby  ordered  and  directed  that  the  following 
papers,  pamphlets  and  documents  be  filed  and  made  a  part  of 
the  record  in  this  case,  to-wit : 

1.  The  abstract  of  the  record  of  the  district  court  of  Mont- 
gomery county,  Kansas,  in  an  action  therein  pending  wherein 
the  state  of  Kansas  was  plaintiff  and  the  Independence  Gas 
Company,  a  corporation ;  The  Consolidated  Gas,  Oil  &  Manu- 
facturing Company,  a  corporation,  and  the  Kansas  Natural 
Gas  Company,  a  corporation,  were  defendants,  being  No. 
13,476. 

2.  The  opinion,  findings  of  fact,  conclusions  of  law,  re- 
straining order,  injunction,  and  decree  of  the  Honorable 
Thomas  J.  Flannelly,  district  judge,  in  a  case  in  the  district 
court  of  Montgomery  county,  Kansas,  wherein  the  state  of 
Kansas  was  plaintiff,  and  the  Independence  Gas  Company,  a 
corporation;  The  Consolidated  Gas,  Oil  &  Manufacturing 
Company,  a  corporation,  and  the  Kansas  Natural  Gas  Com- 
pany, a  corporation,  were  defendants,  being  No.   13,476. 

3.  The  transcript  of  the  record  in  cause  No.  4008  in  the 
United  States  circuit  court  of  appeals  for  the  eighth  circuit, 
wherein  John  L.  McKinney.  et  al.,  are  appellants,  and  John 
M.  Landon,  et  al.,  are  appellees. 

4.  Certified  copy  of  the  motion  of  the  Fidelity  Trust  Com- 
pany to  quash  service  of  summons  in  the  case  above  men- 


1012  SUITS   IN    EQUITY. 

tioned  in  the  district  court  of  Montgomery  county,  Kansas, 
No.  13,476. 

5.  Certified  copy  of  the  summons  for  personal  service  out- 
side of  the  state  of  Kansas  on  the  Fidelity  Trust  Company  in 
said  case  in  the  district  court  of  Montgomery  county,  Kansas, 
No.  13,476. 

6.  Certified  copy  of  the  affidavit  for  publication  of  the 
service  in  said  case  in  Montgomery  county,  Kansas,  No. 
13,476. 

7.  Certified  copy  of  the  order  of  the  district  court  of  Mont- 
gomery county,  Kansas,  in  said  cause.  No.  13,476,  made  and 
entered  of  record  by  the  Honorable  Thomas  J.  Flannelly  on 
the  7th  day  of  January,  1914. 

8.  Certified  copy  of  the  supplemental  petition  filed  in  said 
district  court  of  Montgomery  county,  Kansas,  in  cause  No. 
13,476,  on  the  15th  day  of  February,  1913,  and  filed  as 
amended  on  February  27,  1913. 

9.  Certified  copy  of  the  journal  entry  in  said  cause  No. 
13,476,  in  the  district  court  of  Montgomery  county,  Kansas, 
made  and  entered  therein  on  the  25th  day  of  February,  1913. 

10.  Certified  copy  of  the  journal  made  and  entered  of 
record  in  said  case,  No.  13,476,  in  the  district  court  of  Mont- 
gomery county,  Kansas,  on  the  11th  day  of  March,  A.  D. 
1913. 

11.  Certified  copy  of  the  order  of  the  district  court  of 
Montgomery  county,  Kansas,  made  and  entered  of  record  in 
said  cause,  No.  13,476,  and  filed  of  record  therein  on  the  21st 
day  of  June,  A.  D.  1913. 

12.  Certified  copy  of  an  order  of  the  district  court  of 
Montgomery  county,  Kansas,  made  in  said  case.  No.  13,476, 
and  entered  of  record  in  said  court  on  the  2nd  day  of  July, 
A.  D.  1913. 

And  each  and  every  of  said  papers,  pamphlets  and  docu- 
ments are  ordered  filed  and  now  made  of  record  in  this  cause. 
Done  in  open  court  this  24th  day  of  January,  A.  D.  1914. 

Smith  McPherson, 
Judge 


NOTICES,    MOTIONS,   ORDERS,   DECREES,   ETC.  1013 

No.  691. 

Order  Designating  and  Appointing  Judge  in  One  District  to 
Hold  Court  in  Another  District,  and  Certificate  Thereto. 

[Caption.] 

(Minutes  Vol.  ,  Page  ,  July  21,  1917.) 

"Whereas,  in  my  judgment  the  public  interests  require  the 
designation  and  appointment  of  a  district  judge  of  another 
district  in  the  circuit  to  hold  the  district  court  in  the  northern 
district  of  Texas  in  place  and  in  aid  of  the  district  judge 
thereof,  indefinitely  absent  by  reason  of  sickness — 

Now,  therefore,  I,  Don  A.  Pardee,  senior  circuit  judge, 
now  present  in  the  circuit,  do  hereby  designate  and  appoint 
the  judge  of  the  western  district  of  Louisiana  in  said  circuit, 
to-wit,  the  Honorable  George  W.  Jack,  to  hold  the  district 
courts  in  the  northern  district  of  Texas  in  place  and  in  aid 
of  the  judge  thereof,  and  therein  to  have  the  powers  provided 
in  section  14  of  the  Judicial  Code. 

Witness  my  hand  this  2nd  day  of  April,  1917. 

Don  a.  Pardee, 
Senior  Circuit  Judge. 

I,  Louis  C.  Maynard,  clerk  of  the  United  States  district 
court  for  the  northern  district  of  Texas,  do  hereby  certify 
that  the  above  and  foregoing  is  a  true  and  correct  copy  of 
the  order  of  the  Honoarble  Don  A.  Pardee,  senior  circuit 
judge  of  the  fifth  circuit  of  the  United  States,  designating 
and  appointing  the  Honorable  George  W.  Jack,  United  States 
district  judge  for  the  western  district  of  Louisiana  to  hold 
the  sessions  of  the  United  States  district  court  for  the 
northern  district  of  Texas. 

In  witness  whereof,  I  hereunto  affix  my  hand  and  the  seal 
of  said  United  States  district  court  at  Dallas,  Texas,  this 
21st  day  of  July,  A.  D.  1917. 

[Seal]  Louis  C.  Maynard, 

Clerk. 


1014  SUITS   IN    EQUITY. 

No.  692. 

Order  to  Draft  Board  to  Show  Cause. 

[Caption.] 

Upon  the  bill  of  complaint  and  summons  in  this  action,  and 
the  depositions  of  Alexander  Angelus,  John  Angelus  and 
Louis  Angelus,  and  it  appearing  to  my  satisfaction  by  the 
said  bill  of  complaint  and  depositions  that  the  complainant, 
John  Angelus,  is  an  alien  who  has  not  declared  his  intention 
to  become  a  citizen  of  the  United  States  and  is  as  such  not 
subject  to  draft  under  the  statute  known  as  the  Conscription 
Act,  and  that  the  said  complainant  has  been  made  and 
directed  by  the  defendants  above  named  to  appear  and  submit 
himself  to  the  military  authorities  of  the  United  States  in 
violation  of  the  terms  of  the  said  Conscription  Act. 

Now,  on  motion  of  Charles  Recht,  solicitor  for  the  said 
complainant  herein,  let  the  defendants,  John  Sullivan,  Dr. 
Louis  Aaronson  and  Dr.  Edward  Wagner  herein,  show  cause 
before  me  or  the  judge  of  this  court  who  may  be  presiding  at 
the  motion  calendar  hereof  on  the  13th  day  of  September, 
1917,  at  10  a.  m.,  of  that  day,  or  as  soon  thereafter  as  counsel 
can  be  heard,  why  they  should  not  be  enjoined  and  restrained 
from  certifying  the  name  of  the  complainant  herein  for  mili- 
tary service  and  why  the  name  of  the  complainant  herein 
should  not  be  stricken  from  the  list  of  persons  who  have 
been  certified  for  military  service  and  why  the  complainamt 
should  not  have  such  other,  further  or  different  relief  as  may 
be  considered  equitable. 

Service  of  a  copy  of  this  order  and  all  papers  upon  which 
it  was  granted  upon  the  defendants  or  any  one  of  them  on 
or  before  the  8th  day  of  September,  1917,  shall  be  sufficient 
service.  J.  M.  Mayer, 

District  Judge. 

By  granting  this  order  to  show  cause,  I  do  not  indicate 
that  this  court  has  jurisdiction.  J.  M.  M., 

D.J. 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  1015 

No.  693. 

Order  Appointing  Commissioners  to  Partition. 

[Caption,] 

It  also  appearing  to  the  court  that  T.  V.  Smelker,  P.  G. 
Omohundro  and  B.  Irby  are  resident  citizens  of  Jefferson 
county,  Texas,  and  the  eastern  district  of  Texas,  and  are  com- 
petent and  disinterested  persons,  it  is  further  ordered  that 
they  be  and  are  hereby  appointed  commissioners  to  make  a 
fair,  equal,  just  and  impartial  partition  of  said  land  and 
premises  above  described,  and  in  the  shares  and  interests  as 
hereinabove  decreed  between  the  complainant  and  defendants 
and  intervener,  in  accordance  with  this  decree  and  the  law, 
and  when,  same  is  completed  to  report  the  same  in  writing 
and  under  oath,  at  the  first  day  of  the  next  term  of  this  court, 
describing  the  real  estate  divided,  value  and  allotment  of  each 
interest,  accompanied  by  such  field  notes  and  maps  as  may 
be  necessary  to  make  same  intelligible;  said  commissioners, 
however,  are  not  required  to  do  said  work  or  make  said  re- 
port until  final  disposition  of  this  cause  in  the  event  the  same 
shall  be  appealed  to  the  United  States  circuit  court  of  ap- 
peals. 

It  is  further  ordered  that  the  proper  writ  of  partition  issue 
and  that  all  costs  incurred  in  this  case  be  apportioned  and 
adjudged  against  the  parties  herein  according  to  their  respec- 
tive interests.  Gordon  Russell, 

Judge  Presiding. 


No.  694. 

Order  Enjoining  Transfer  or  other  Disposition  of  Bonds. 

[Caption.] 

This  cause  came  on  to  be  heard  on  the  motion  of  the  Stur- 
tevant  Mill  Company,  intervener  herein,  filed  herein  on  July 
3,  1916,  for  an  order  directing  the  defendant,  The  Provident 
Savings  Bank  &  Trust  Company,  to  hold  the  bonds  of  The 
Superior  Portland  Cement  Company,  and  this  cause  having 


1016  SUITS   IN    EQUITY. 

been  heard  upon  the  merits  and  submitted  to  the  court  and  it 
appearing  to  the  court  that  since  the  original  order  of  injunc- 
tion herein,  sundry  persons  have  been  made  new  parties  de- 
fendant to  this  cause  and  have  appeared  herein,  and  all  of 
said  parties  having  appeared  in  person  or  by  counsel  on  the 
hearing  of  this  cause,  now  it  is  ordered  that  all  parties  to  this 
cause,  their  officers,  agents,  attorneys,  employes,  and  all  other 
persons  whomsoever,  be  and  they  are  hereby  enjoined  and 
restrained  until  further  order  of  this  court  from  selling,  trans- 
ferring, pledging,  hypothecating,  removing  or  otherwise  dis- 
posing of  any  of  the  bonds  of  the  defendant,  The  Superior 
Portland  Cement  Company,  which  they  or  any  of  them  re- 
spectively own  or  hold  or  have  in  their  possession  or  under 
their  control  either  as  pledgees,  agents  or  otherwise. 

And  C.  A.  Scott  and  John  E.  Harper  having  appeared  on 
the  hearing  of  this  cause,  and  by  their  counsel  stated  in  open 
court  the  ownership  of  certain  of  said  bonds  by  said  Scott 
purchased  from  said  Harper,  it  is  ordered  on  motion  of  said 
the  Sturtevant  Mill  Company  that  said  C.  A.  Scott  and  said 
John  E.  Harper  be  and  they  are  hereby  made  parties  de- 
fendant hereto  and  included  in  this  order  of  injunction. 

HoLLisTER,  Judge. 


No.  695. 

Order  Modifying  Injunction  Order. 

[Caption.] 

On  motion  of  the  Provident  Savings  Bank  &  Trust  Com- 
pany, and  for  good  cause  shown,  it  is  ordered  that  the  order 
of  injunction  entered  herein  on  July  15,  1916,  be  and  the 
same  is  hereby  modified  and  supplemented  as  follows,  to-wit: 
That  nothing  contained  in  said  order  shall  enjoin  or  restrain 
said  the  Provident  Savings  Bank  &  Trust  Company  from  re- 
delivering to  those  from  whom  it  received  them  the  bonds  or 
other  securities  deposited  with  it  under  the  agreement  called 
the  "Drach  agreement,"  dated  June  6,  1916. 

HoLLisTER,  Judge. 


NOTICES,    MOTIONS,   ORDERS,    DECREES,    ETC.  1017 

No.  696. 

Order  to   Show   Cause  Why   Certain  Matter  Should  not  be 
Transmitted  Through  the  Mails. 

[Caption.] 

Upon  the  duly  verified  bill  of  complaint,  duly  verified  and 
filed  this  12th  day  of  July,  1917,  and  the  writ  of  subpoena 
herein,  and  the  affidavits  of  Merrill  Rogers  and  Max  East- 
man, duly  verified  and  filed  this  12th  day  of  July,  1917,  and 
upon  motion  of  Gilbert  E.  Roe,  Esq.,  solicitor  for  complain- 
ant, it  is 

Ordered,  that  the  defendant  show  cause,  if  any  he  have, 
before  the  undersigned,  one  of  the  judges  of  the  district 
court  of  the  southern  district  of  New  York,  at  his  chambers 
in  the  Woolworth  building,  in  the  borough  of  Manhattan, 
city  of  New  York,  on  the  16th  day  of  July,  A.  D.  1917,  at 
2  o'clock  in  the  afternoon,  or  as  soon  thereafter  as  counsel 
can  be  heard,  why  an  injunction  should  not  issue  pendente 
lite,  as  prayed  in  the  bill  of  complaint  herein,  and  enjoining 
and  restraining  the  defendant,  his  agents,  servants  and  em- 
ployes, and  all  other  persons  whomsoever,  from  treating  the 
August,  1917,  issue  of  said  magazine,  or  any  numbers  there- 
of, known  as  "The  Masses,"  as  non-mailable,  under  the  act 
of  June  15,  1917,  or  any  other  act  or  law  whatsoever,  and 
that  said  defendant,  his  agents,  servants  and  employes,  be 
forthwith  commanded  to  transmit  said  magazines  through 
the  mail  in  the  usual  way,  and  accord  to  the  complainant 
thereof  the  rights  and  privileges  of  second-class  mail  matter, 
whereon  the  lawful  postage  has  been  duly  paid  and  received 
by  the  proper  post-office  officials.  And  that  the  defendant 
show  cause,  at  the  same  time  and  place,  why  the  complain- 
ant should  not  have  such  other  and  further  relief  in  the 
premises  as  may  be  just  and  proper. 

Ordered  further,  that  sufficient  cause  having  been  shown, 
service  of  this  order,  with  copies  of  said  bill  of  complaint, 
and  of  said  affidavits,  on  the  deffndant  on  or  before  the 
13th  day  of  July,  1917,  shall  be  sufficient  service. 

Dated  New  York,  July  12,  1917. 

Learned  Hand,  D.  J. 


1018  SUITS   IN    EQUITY- 

No.  697. 

Order  to  Show  Cause  Against  Postponement,  Issue  of  Pre- 
liminary Injunction  and  Delivery  of  Data  into  Custody 
of  Court. 

On  motion  of  Charles  N.  Butler,  solicitor  for  plaintiffs, 
and  due  consideration  having  been  had,  it  is  ordered  as 
follows : 

1.  That  on  or  before  the  20th  day  of  November,  1914,  a 
copy  of  this  order  and  of  the  annexed  affidavits  of  Edwin 
J.  Prindle,  Irene  Du  Pont  and  of  Warren  H.  Small  be  served 
on  solicitors  for  defendants. 

2.  That  on  or  before  the  23rd  day  of  November,  1914, 
defendants  serve  upon  solicitor  for  plaintiffs  their  answering 
affidavits. 

3.  That  on  or  before  the  25th  day  of  November,  1914, 
plaintiffs  serve  on  solicitor  for  defendants  their  rebuttal 
affidavits. 

4.  That  defendants  appear  before  this  court  at  3  o'clock 
p.  m.,  or  as  soon  thereafter  as  counsel  can  be  heard,  on  the 
25th  day  of  November,  1914,  in  the  district  court  room,  in 
the  post-office  building,  in  the  city  of  Philadelphia,  and  state 
of  Pennsylvania,  and  show  cause,  if  any  there  be: 

(a)  Why  the  hearing  of  this  cause  should  not  be  post- 
poned until  after  the  return  to  this  country  of  Fin  Sparre, 
one  of  the  plaintiffs'  principal  witnesses,  whose  return  is  ex- 
pected in  the  month  of  February,  1915,  based  on  the  said 
affidavits  of  Edwin  J.  Prindle  and  of  Irene  Du  Pont; 

(b)  Why  a  preliminary  injunction  should  not  be  granted 
as  prayed  in  the  bill  of  complaint  herein,  based  on  said  bill 
of  complaint,  on  the  record  on  motion  for  preliminary  in- 
junction on  file  in  this  court,  and  on  the  said  affidavit  of 
Warren  H.  Small ;  and 

(c)  Why  they  should  not  deliver  forthwith  into  the  cus- 
tody of  the  clerk  of  the  court  in  sealed  envelopes  any  and 
all  memoranda,  drawings,  specimens,  papers  and  articles  of 
any  description  in  their  possession  or  under  their  control. 


NOTICES,    MOTIONS,    ORDERS,   DECREES,   ETC.  1019 

without- making  or  retaining  any  copies  or  duplicates  thereof, 
relating  to  any  and  all  secret  processes,  apparatuses,  articles 
of  manufacture,  or  compositions  of  matter,  or  any  new  and 
useful  improvements  thereof,  which  have  become  known  to 
them  by  reason  of  the  employment  of  Walter  E.  Masland 
by  said  plaintiffs  or  either  of  them,  and  particularly  all  pa- 
pers containing  memoranda  which  said  Walter  E.  Masland 
made  from  time  to  time  during  the  course  of  his  employ- 
ment by  said  plaintiffs  or  either  of  them  as  set  forth  on  the 
last  page  of  his  affidavit  filed  in  this  cause  in  opposition  to 
motion  for  preliminary  injunction,  as  prayed  in  the  bill  of 
complaint  herein.  By  the  Court. 


No.  698. 

Decree  Rescinding  Contract  for  Fraud. 
[Caption.] 

This  cause  came  on  to  be  heard  at  this  term,  and  was 
argued  by  counsel,  and  thereupon,  upon  consideration  there- 
of, it  is  declared  by  th^  court  that  the  contract  of  sale,  and 
the  conveyance  of  the  premises,  and  the  notes  of  the  said  O. 
D.  thereupon,  as  set  forth  in  the  bill,  were  made  by  and  be- 
tween the  said  O.  D.  and  the  said  J.  T.  and  other  parties, 
upon  material  representations  and  mutual  mistakes  as  to  the 
quality  of  timber  on  the  premises  so  sold,  and  therefore 
ought  to  be  set  aside  and  held  null  and  void;  and  the  said 
O.  D.  ought  to  be  repaid  the  amount  of  the  said  purchase- 
money  actually  paid  by  him  thereupon  and  therefor  by  the 
said  J.  T.,  who  received  the  notes  for  the  same,  and  in  his 
aid  and  for  his  relief,  by  such  of  the  other  parties,  defendants 
to  the  bill  respectively,  for  whom  the  said  J.  T.  acted  as 
agent,  or  who  with  a  full  knowledge  of  and  assent  to  the  said 
contract  of  sale  and  misrepresentations  and  mistakes,  have 
received  any  of  the  said  notes,  or  any  part  of  the  purchase- 


1020  SUITS    IN    EQUITY. 

money  paid  thereon  by  the  said  O.  D.;  but  not  for  the  part 
thereof  received  by  any  other  party.  And  thereupon,  in  fur- 
therance of  the  declarations  aforesaid,  it  is  further  ordered, 
adjudged,  and  decreed  that  the  same  contract  of  sale,  and 
conveyance,  and  notes,  be,  and  hereby  are,  annulled,  re- 
scinded, and  declared  utterly  void  and  of  no  effect. 

And  the  said  O.  D.  is  further  ordered,  adjudged,  and  decreed 
to  convey  the  premises  by  such  due  and  reasonable  convey- 
ance or  conveyances  as  shall  be  devised  and  reported  by  a 
master,  when  and  so  soon  as  the  purchase-money  actually 
paid  by  him  shall  be  repaid  as  hereinafter  mentioned. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the 
court  that  the  said  J,  T.  be,  and  hereby  is,  held  directly  liable 
to  the  plaintiff  for  the  whole  amount  of  moneys  paid  as  afore- 
said, deducting,  however,  therefrom  the  proceeds  of  timber 
sold,  as  well  as  the  value  of  timber  taken  from  said  lands  by 
and  under  the  authority  of  the  said  O.  D.,  and  remaining 
unsold,  and  making  all  due  allowances  for  all  proper  charges 
and  expenses  incurred  in  regard  to  said  timber,  and  for  taxes 
paid  on  the  said  lands. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  such 
of  the  other  parties,  defendants  to  said  bill,  as  with  a  full 
knowledge  of  the  premises,  or  for  whom  the  said  J.  T.  acted 
as  agent,  or  who  assented  to  the  said  contract  of  sale  and 
conveyance,  with  a  full  knowledge  of  the  premises,  shall  be, 
and  hereby  are,  decreed  to  be  liable  in  aid  and  relief  of  the 
said  J.  T.  to  pay  and  deliver  back  to  the  said  O.  D.  such  parts 
or  portions  of  the  purchase-money  paid  by  the  said  O.  D.  for 
the  said  lands  as  have  been  received  by  them  respectively  in 
the  premises,  or  on  the  notes  of  the  said  O.  D.  so  received 
by  them ,  but  no  one  of  them  to  be  liable  for  any  purchase- 
money  or  notes  received  by  any  of  the  other  parties  defend- 
ants. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the  court 
that  no  damage  or  interest  on  the  aforesaid  moneys  be  al- 
lowed, except  the  proceeds  of  such  timber,  sold  and  unsold, 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1021 

as  aforesaid,  shall  furnish  a  fund  therefor  ;  and  in  that  event, 
interest  upon  said  purchase-money  to  be  added  thereto  as  an 
offset  pro  tajtto  to  the  excess  of  said  proceeds,  not  exceeding 
the  amount  of  such  excess. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the 
court  that  it  be  referred  to  S.  L.,  Esquire,  as  master,  to  ascer- 
tain the  amount  due  to  the  plaintiff  on  the  basis  of  this  de- 
cree, and  also  the  particular  notes  and  sums  received  by  each 
of  said  defendants  of  said  purchase-money,  so  paid  and  se- 
cured as  aforesaid,  and  to  report  the  same  to  the  court. 

And  it  is  further  ordered,  adjudged,  and  decreed  by  the 
court  that  the  master  be  clothed  with  full  power  to  examine, 
as  well  the  parties  as  any  other  witnesses,  orally  or  upon 
written  interrogatories,  under  oath,  in  the  premises,  and  to 
require  the  production  of  all  vouchers,  papers,  and  other 
documents  pertinent  and  proper  in  the  premises ;  and  that 
he  state  a  full  account  in  the  premises  upon  the  basis  of  this 
decree.  And  that  he  be  clothed  with  all  the  usual  powers 
and  authorities  of  a  master  in  all  things  touching  the  prem- 
ises. 

And  all  further  orders  and  decrees  are  reserved  for  the 
consideration  of  the  court. 


No.  699. 

Decree  for  Specific  Performance  of  Agreement  for  Policy 

of  Insurance. 

\Caption?\ 

This  case  was  thence  continued  from  term  to  term  until 

this  present  term  ;  when,  to  wit,  on  the day  of ,  the 

same  came  on  to  be  heard  on  the  bill  and  answer  and  proofs 
in  the  case,  and  was  argued  by  counsel. 

And  it  appearing  to  the  court  that  the  plaintiffs,  through 
their  agent,  made  a  proposal  in  writing  for  insurance  which 
contained  all  the  necessary  terms  of  a  valid  contract  for  a 
policy,  and  that  the  defendants  accepted  this  proposal. 


1022  SUITS    IN    EQUITY. 

That  this  acceptance  made  a  legal  contract  between  the 
parties,  which  it  is  the  duty  of  the  court  to  order  to  be  sp'j- 
cifically  performed. 

That  as  it  is  admitted  that  the  plaintiffs  would  have  a  good 
cause  for  action  at  law  upon  a  policy,  if  issued  in  pursuance 
of  the  contract,  there  should  be  decreed,  to  them  in  this  suit 
what  they  would  be  entitled  to  recover  if  a  policy  were  issued 
and  that  which  was  agreed  to  be  done  were  actually  done: — 

Thereupon  it  is  ordered,  adjudged,  and  decreed  that  the 
said  agreement  so  entered  into  between  the  said  plaintiffs 
and  the  said  defendants  set  forth  in  the  bill  of  complaint, 
and  proven  in  this  cause,  be  specifically  performed. 

It  is  further  ordered,  adjudged,  and  decreed,  that  the  plain- 
tiffs recover  of  the  said  defendants  the  sum  of  eight  thousand 
seven  hundred  and  two  dollars  and  forty-three  cents,  as  and 
for  their  damage  in  this  behalf  sustained,  a  deduction  having 
been  first  made  from  the  sum  agreed  to  be  issued  for  pre- 
mium and  salvage,  and  also  the  sum  of  two  hundred  and 
four  dollars  and  twenty-four  cents,  for  their  cost  in  this  be- 
half sustained 


No.  700. 

Entry  Reversing  Decree. 

{^Caption  ^ 

The  defendant  C.  D.,  heretofore  appealed  to  the  supreme 
oourt  of  the   United  States  from   certain  parts  of  the  final 

decree  made  by  this  court  in   this  cause  on  the day  of 

,  and  the  supreme  court  of  the  United  States  having  at 

the  October  term  1894,  duly  heard  the  said  appeal  upon 
the  transcript  of  the  record,  and  having  thereupon  ordered, 
adjudged,  and  decreed   that  so  much  of  the  said  decree  of 

this  court  as  allows  the  said  plaintiff  costs  and  the  sum  of 

dollars  for  interest  on  the  damages  found  for  him,  was  errone- 
ous and  should  be  reversed  and  annulled,  and  that  the  residue 
of  the  said  decree  of  this  court  should  be  afhrmed ;  and  the  said 
supreme  court  having  remanded  this  cause  to  this  court  with 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1023 

instructions  that  such  proceedings  be  had  in  said  cause  as, 
according  to  right  and  justice  and  the  laws  of  the  United 
States,  ought  to  be  had,  the  said  appeal  notwithstanding, 
which  said  decree,  order,  and  instructions  appear  to  this  court 
by  the  mandate  of  the  said  supreme  court: 

Now,  therefore,  on  filing  the  said   mandate  ordered  \Jiere 
sei  forth  zvhatis  required  by  the  7nandate\. 


No.  701. 

Decretal  Order  Appointing  Special  Master. 

\Caption^ 

This  cause   came   on    to  be  heard  this day  of , 

upon  the  pleadings  and  proofs,  and  was  argued  by  counsel 
for  the  respective  parties,  and  the  court  having  considered 
the  same,  and  being  of  the  opinion  \Jiere  set  forth  the  facts 
found  by  the  court\. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  the 
cause  be  referred  to  C.  G.,  Esq.,  as  special  master,  to  ascer- 
tain and  report  \Jiere  set  forth  the  matters  concer7iing  u,hich 
the  master  is  desired  to  report\. 

And  upon  the  coming  in  and  confirmation  of  the  said 
report  that  said  plaintiff  have  a  decree  and  execution  for 
the  amount  found  due  him  and  also  for  the  costs  in  this 
suit  to  be  taxed. 


No.  702.. 

Decree  with  Order  on  Receiver  to  Pay  over  Funds  (i). 

\CaptionJ\ 

This  cause  came  on  this  day  for  hearing  upon  a  report  of 

the  master,  filed  herein  August ,  the  exceptions  of  A.  C. 

thereto,  and  the  pleadings  and  proof,  and  was  argued  by  coun- 
sel. 

Whereupon  it  was  ordered,  adjudged  and  decreed  that  said 
report  be  confirmed  except  as  to  the  items  of  payment  made 


1024  '  SUITS    IN    EQUITY. 

by  the  receiver  out  of  the  net  rents  in  his  hands,   to   wit: 

$ paid  to  the  solicitor  for  the  complainant,  and  interest 

thereon  from  November  26,  ,  to  July  10,  ,  amount- 
ing to  $ ,  and  $ erroneously  paid  out  by  the  receiver 

for  insurance  upon  the  property  in  controversy,  said  insur- 
ance covering  the  period  of  time  elapsing  after  the  sale  of  said 
property  under  the  order  of  this  court.  As  to  these  items, 
it  is  ordered  that  the  receiver  pay  the  same  to  the  defendant, 
A.  C,  or  to  her  counsel  of  record,  T.  W.  It  is  further  or- 
dered that  the  receiver  pay  to  the  said  A.  C,  or  to  T.  W., 

her  counsel  of  record,  the  sum  of  $ ,  the  balance  remaining 

in  his  hands,  according  to  the  report  filed  herein  August  22, 

.     The  court  is  of  the  opinion  that  these  sums  of  money, 

the  net  rents  arising  from  the  property  impounded  by  its 
receivership,  are  the  property  of  A.  C,  and  are  not  subject 
to  the  mortgage  foreclosed  in  this  court  or  applicable  to  the 
deficiency  decree  in  favor  of  the  complainant,  and  it  so  ad- 
judges and  decrees. 

It  is  ordered  that  the  receiver  pay  these  sums,  amounting 
to  $ within  ten  days  from  the  entry  of  this  order. 

On  motion  of  the  attorney  of  record  of  A.  C,  he  has  leave 
to  file  notice  of  his  lien  under  Act  of  General  Assembly  of 
the  state  of  ,  passed  April  13,  ,  and  the  said  re- 
ceiver and  the  defendant  company  are  hereby  required  to  take 
notice  thereof. 

(1)  See  Equity  Rule  71.  The  decree  should  not  recite  the  pleadings. 
Whiting  V.  U.  S.,  13  Pet.  16. 


No.  703. 

Decree  for  Plaintiff  on  Bill  to  Enjoin  the  Transfer  of  Title  in 
Patents  by  a  Copartner. 

[Caption.] 

This  day  this  cause  came  on  to  be  heard  upon  the  plead- 
ings, evidence  adduced  by  the  parties  and  argument  of  coun- 
sel, and  the  court  being  fully  advised  in  the  premises,  finds : 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1025 

That  the  plaintiff,  R.  C,  has  succeeded  to  all  estate,  prop- 
erty, rights  and  choses  in  action  of  the  partnership  known  as 

J.  W.  &  Son,  of ,  including  the  claim  herein  sued  upon; 

that  the  said  J.  W.  &  Son,  on  or  about ,  being  desirous  of 

purchasing  the  entire  interest  of  D.  E.,  of  ,  in  letters 

patent  of  the  United  States,  No.  336,434,  issued  to  D.  E.  on 
February  ,  for  an  improvement  in  automatic  brick-cut- 
ting machinery,  and  reposing  confidence  in  the  integrity  and 
fidelity  of  the  defendant,  B.  E.,  who  was  then  in  the  employ 
of  said  J.  W.  &  Son,  requested  him,  as  their  agent,  to  go  to 

,  call  upon  said  D.  E.,  and  obtain  from  him  an  option  for 

the  purchase  of  his  interest  in  said  patent;  that  in  pursuance 

of  said  instructions,  the  said  defendant,  or  or  about  the 

day  of  ,   while  acting  as  agent  and   representative  of 

said  partnership,  called  upon  said  D.  E.,  and  obtained  from 
him  an  option  to  purchase,  on  or  before his  entire  inter- 
est in  said  patent  for  the  sum  of  $ ,  and  also  an  option  to 

have  issued  to  him,  the  said  B.  E.,  or  his  assigns,  at  any  time 
prior  to  said  date,  license  to  manufacture  said  patent  at  one 

point  only  on  payment  of  the  sum  of  $ for  each  license; 

•that  said  defendant,  fraudulently  and  in  violation  of  said  in- 
structions and  of  his  obligations  to  said  J.  W.  &  Son,  took 
said  options  in  his  own  name;  that  thereafter,  to  wit,  on  or 

about  ,  said  defendant  procured  the  said  D.  E.  to  issue 

under  the  terms  of  said  option  to  W.  R.,  of ,  a  license 

to  manufacture  said  improvement  in  said  city  of ,  and 

to  sell  the  machines  so  manufactured  throughout  the  United 
States  until  the  end  of  the  term  of  said  patent,  for  which  li- 
cense said  defendant  B.  E.  was  paid  by  the  said  W.  R.  the 

sum  of  $ ,  that  thereafter,  to  wit,  on ,  said  defendant 

acquired  the  remaining  interest  of  said  D.  E.  in  said  patent 
under  and  by  virtue  of  the  terms  of  said  option  for  the  sum 

of  $ ;  that  thereafter,  to  wit,  on ,  said  defendant,  B. 

E.,  with  intent  to  defraud  said  J.  W.  &  Son,  assigned  and 
transferred,  without  receiving  any  consideration  therefor,  to 


1026  SUITS    IN    EQUITY. 

the  defendant,  J.  E.,  a  license  to  manufacture  at  any  place  and 
sell  throughout  the  United  States  said  invention  under  said 
patent;  that  the  interest  in  said  patent  so  assigned  to  said 
J.  E.  is  held  by  him  in  trust  for  plaintiff;  that  thereafter,  to 
wit,  on  or  about  ,  said  defendant,  B.  E.,  with  like  in- 
tent and  without  consideration,  assigned  and  transferred  an- 
other shop  right  under  said  patent  to  W.  H.,  of ,  which 

assignment  is  still  in  the  possession  and  under  the  control 
of  the  defendant,  B.  E. 

The  court  further  finds  that  the  defendant,  B.  E.,  has  re- 
ceived from  the  sale  of  interests  in  said  patent  the  sum  of 

,  and  that  he  expended  in  acquiring  said  interests  the 

sum  of  $ . 


Wherefore,  it  is  ordered,  adjudged  and  decreed  that  the 
defendants,  B.  E.  and  J.  E.,  hold  all  interest  in  said  patent  so 
transferred  to  them  in  trust  for  the  plaintiff,  and  they  are, 
and  each  of  them  is,  hereby  ordered  and  directed,  within  ten 
days  from  the  entry  of  this  order,  to  assign  and  transfer  to 
the  plaintiff  all  right,  title  and  interest  so  acquired  by  them, 
or  either  of  them,  in  said  patent  under  and  by  virtue  of  said 
assignments  and  transfers;  and  the  said  B.  E.  is  further  or-» 
dered  and  directed,  within  ten  days  from  the  entry  of  this  or- 
der, to  surrender  to  the  clerk  of  this  court  the  assignment 
of  the  shop  right  in  said  patent  executed  by  him  in  favor  of 
said  W.  H. ;  and  the  said  B.  E.  and  J.  E.  are,  and  each  of 
them  is,  enjoined  from  in  any  manner  assigning,  transferring 
or  disposing  of  said  patent,  or  of  any  interest  therein. 

And  the  defendant,  B.  E.,  is  ordered  to  pay  to  plaintiff  the 

sum  of dollars,  in  default  of  which  execution  is  awarded 

as  in  proceedings  at  law. 

Judgment  is  also  rendered  against  defendant,  B.  E.  and 
J.  E.,  for  the  costs  of  this  action,  taxed  at  $ . 


NOTICES,    MOTIONS,    ORDERS,   DECREES,   ETC.  1027 

No.  703a. 

Decree  for  Property  Under  a  Will  and  Reference  to  Master. 

[Caption.^ 

This  cause  came  on  to  be  heard  upon  the  pleadings  and 
proofs  at  this  term  and  was  argued  by  counsel ;  and  thereupon, 
upon  consideration  thereof,  it  was  ordered,  adjudged  and 
decreed  as  follows,  viz. : 

That  the  complainant  is  the  widow  of  S.  B.,  deceased, 
and  as  such  became  entitled,  on  his  death,  to  all  of  the  prop- 
erty remaining  at  the  death  of  S.  B.,  in  the  hands  of  J.  B., 
and  to  which  said  S.  B.  was  entitled  under  the  sixth  clause  of 
the  will  of  H.  B.,  deceased,  and  also  to  all  property  which 
came  into  the  hands  of  said  J.  B.  from  any  other  source  and 
belonged  to  the  said  S.  B.  in  his  lifetime. 

That  all   proceedings  had   in  the   Probate   Court   for  the 

county  of ,  state  of ,  in  the  matter  of  the  estate  of 

H.  B.,  deceased,  after  the  death  of  S.  B.  are  null  and  void  as 
to  the  complainant,  A.  B. 

That  the  said  J.  B.  died  in  the  year  1899,  ^^ »  ^"d  that 

he  left  a  last  will  and  testament  which  has  been  duly  admitted 

to  probate  by  the  Probate  Court  of county,  and  that  by 

the  provisions  of  said  last  will  and  testament  and  the  order 
and  judgment  of  the  Probate  Court  of county,  the  de- 
fendants, F.  B.  and  C.  B.,  have  been  duly  appointed  executrix 
and  executor  of  the  estate  and  last  will  and  testament  of  the 
said  J.  B.,  deceased. 

That  this  cause  by  proceedings  duly  had  in  this  court  has 
been  revived  after  the  death  of  the  defendant  J.  B.  and  the 
said  executor  and  executrix  made  defendants  herein. 

That  the  executor  and  executrix  of  the  estate  of  J.  B.,  de- 
ceased, as  defendants  herein  account  to  the  complainant  for 
all  property  remaining  in  the  hands  of  said  J.  B.  at  the  time 
of  the  death  of  said  S.  B.  which  came  to  him  under  and  by 
virtue  of  the  sixth  clause  of  the  said  will  of  H.  B.,  deceased, 


1028  SUITS    IN    EQUITY. 

and  do  also  account  to  the  complainant  for  all  property  that 
came  into  the  hands  of  said  J.  B.  from  any  other  source  and 
belonged  to  the  said  S.  B.  in  his  lifetime. 

That  this  cause  be  referred  to  E.  M.,  Esq.,  as  special  mas- 
ter to  take  testimony  and  report  as  to  the  amount  and  value  of 
all  the  property  remaining  in  the  hands  of  J.  B.  at  the  time 
of  the  death  of  S.  B.  and  to  which  the  said  S.  B.  was  entitled 
in  his  lifetime  under  the  sixth  clause  of  the  will  of  H.  B., 
deceased,  and  also  to  take  testimony  and  report  as  to  the 
amount  and  value  of  all  property  which  came  into  the  hands  of 
said  J.  B.  from  any  other  source  and  belonged  to  the  said  S.  B. 
in  his  lifetime,  and  to  state  an  account  between  the  parties  in 
this  cause  according  to  and  in  conformity  with  the  rules  and 
practice  of  this  court. 

And  upon  the  coming  in  and  confirmation  of  said  report 
that  the  said  plaintiff  have  a  decree  and  execution  for  the 
amount  due  to  her  and  also  for  the  costs  in  this  cause  to  be 
taxed. 


No.  704. 

Decree  on  Bill  of  Interpleader. 

ICaption.'] 

This  cause  coming  on  to  be  heard,  it  appeared  that  the  said 
Israel  Thorndike  the  elder  by  his  last  will  directed  his  execu- 
tors, of  whom  the  complainant  is  the  survivor,  to  place  the  sum 
of  twenty  thousand  dollars  in  the  office  of  the  Massachusetts 
Hospital  Life  Insurance  Company  in  trust,  to  receive  the  in- 
come and  pay  it  annually  to  his  son,  Andrew  Thorndike,  dur- 
ingf  his  life,  and  at  his  decease  to  take  up  the  sum  and  pay  it 
to  the  heirs-at-law  of  the  said  Andrew ;  that  said  deposit  was 
made,  and  the  income  paid  to  the  said  Andrew  during  his  life ; 
that  upon  his  decease,  Israel  Thorndike,  a  brother  of  the  said 
Andrew,  brought  his  action  at  law  against  the  said  executors, 
claiming  one-sixth  part  of  said  fund  as  one  of  the  heirs-at- 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1029 

law  of  the  said  Andrew ;  that  thereupon  the  said  complainant 
filed  his  bill  and  amended  bills  in  equity  against  the  said  Israel 
and  other  persons,  who  would  be  the  heirs-at-law  of  the  said 
Andrew  if  he  had  died  unmarried  and  without  unlawful  is- 
sue; and  also  against  Katharina  Bayerl  Thomdike,  claiming 
to  be  the  lawful  widow  of  the  said  Andrew ;  and  against  An- 
dreas Thorndike  and  Anna  Loring  Thorndike,  infants,  claim- 
ing to  be  the  lawful  issue  and  heirs-at-law  of  the  said  Andrew, 
praying  that  the  said  Israel  might  be  enjoined  from  prosecut- 
ing the  said  suit  at  law,  and  that  the  several  parties  might 
interplead  and  present  their  respective  claims  for  the  consid- 
eration and  determination  of  the  court;  and  thereupon  the 
said  parties  did  appear  by  their  respective  counsel  and  guard- 
ians, and  proofs  being  taken  and  read,  upon  arguments  of 
counsel,  it  was  considered  and  now  adjudged  and  decreed  that 
the  said  Andreas  Thorndike  and  Anna  Loring  Thorndike  are 
both  children  of  the  said  Andrew,  begotten  upon  the  body 
of  the  said  Katharina,  before  marriage;  that  afterwards  the 
said  Andrew  was  duly  and  lawfully  married  to  the  said  Kath- 
arina, lived  with  her  as  his  lawful  wife,  and  openly  and  pub- 
licly acknowledged  the  said  Andreas  and  Anna  Loring  to  be 
his  children  and  heirs-at-law ;  that  by  reason  thereof  they 
are  entitled  under  the  will  of  the  said  Israel  Thomdike  the 
elder  to  the  said  sum  of  money  to  be  divided  between  them 
in  equal  shares ;  and  that  the  said  Katharina  is  not  entitled  to 
any  part  thereof;  and  that  the  other  defendants  are  not  en- 
titled. 

And  it  appearing  to  the  court  by  the  statement  of  the  said 
complainant  that  he  holds  the  sum  of  twenty  thousand  seven 
hundred  and  forty-five  dollars  and  twenty-seven  cents  subject 
to  the  order  and  direction  of  the  court :  It  is  further  or- 
dered and  decreed  that  he  do  pay  to  the  solicitors,  F.  C.  L., 
C.  W.  L.  and  A.  D.,  their  costs  of  counsel  fees  to  be  taxed 
as  between  solicitor  and  client,  and  that  the  residue  thereof  be 
paid  one-half  part  to  J.   G.,  guardian  of  the  said  Andreas 


1030  SUITS    IN    EQUITY. 

Thorndike,  and  one-half  part  to  W.  I.  B.,  guardian  of  the  said 
Anna  Loring  Thorndike;  and  that  the  bill  be  dismissed  as  to 
the  other  defendants  without  costs. 


No.  705. 

Decree  on  Stockholders'  Petitions  in  a  Suit  against  a  Build- 
ing Association. 

Be  it  remembered  that  this  cause  came  on  to  be  heard  on 

this day  of ,  before  the  Hon.  C.  D.,  judge,  etc.,  upon 

the  bill,  answer,  intervening  petition  of  W.  L.  et  al.,  the  agree- 
ment of  stockholders  exhibited  with  said  petition,  the  report 
of  the  receiver  (attested  by  the  secretary  of  the  association), 
made  pursuant  to  said  agreement  of  stockholders  and  filed 
September,  1897,  and  the  exhibits  to  said  report,  which  re- 
port and  exhibits  were  presented  and  relied  upon  as  evidence 
by  said  intervening  petitioners,  and  were  so  admitted  in  open 
court  by  the  defendant  association;  and  thereupon  it  is  or- 
dered, adjudged  and  decreed  as  follows : 
.     First.  That  the  agreement  betweeen  the  stockholders  of 

said  association,  dated ,  1897,  and  filed  with  said  petition 

to  W.  L.  et  al.,  as  Exhibit  "  A  "  thereto,  be  and  the  same  is 
hereby  approved,  ratified  and  affirmed  by  the  court;  and  that 
the  same  be  carried  out  by  all  proper  orders,  decrees  and  pro- 
ceedings in  this  cause  necessary  to  carry  it  out  according  to  its 
terms. 

Second.  That  the  defendant,  the  C.  D.  Building  &  Loan 
Association,  is  justly  indebted  to  each  of  the  following  named 
investment  and  paid-up  stockholders  in  said  association,  after 
making  all  proper  deductions  and  charges  in  the  several 
amounts  set  after  the  names  of  said  stockholders,  respectively, 
said  amounts  being  the  values  of  said  stocks  belonging  to  said 
stockholders,  calculated  according  to  said  agreement,  to  wit : 
[Specify  indebtedness.'] 

The  aforesaid  indebtedness  to  said  non-borrowing  stock- 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1031 

holders  shall  be  paid  and  satisfied,  as  far  as  practicable,  and 
pro  rata  by  applying  to  and  upon  the  same  the  notes  of  the 
borrowing  stockholders  hereinafter  provided  for  and  the  prop- 
erty of  the  defendant  association  remaining  after  satisfaction 
of  the  expenses  of  this  winding  up  proceeding,  and  the  pay- 
ment of  prior  claims  as  the  same  in  this  cause  shall  be  here- 
inafter adjudged;  and  orders  and  decrees  shall  be  had  and 
taken  in  this  cause  from  time  to  time  whenever  and  so  long 
as  necessary  to  that  end  until  the  affairs  of  said  association  are 
finally  wound  up. 

Third.  That  the  petitioner,  C.  S.,  is  justly  indebted  to  said 

C.  D.  Building  &  Loan  Association  in  the  sum  of dollars, 

after  allowing  petitioner  all  credits  and  set-offs  to  which  he  is 
entitled,  including  a  credit  for  ninety  per  cent,  of  the  value  of 
his  stock  in  said  association. 

[/w  like  manner  set  out  the  finding  with  reference  to  the 
other  petitioners  and  stockholders.'\ 

Fourth.  That  each  of  said  petitioners  adjudged  and  decreed 
to  be  indebted  to  said  C.  D.  Building  &  Loan  Association  in 
the  foregoing  sections  of  this  decree,  numbered  ,  inclu- 
sive, pay  to  said  association  the  amounts  of  indebtedness  sev- 
erally adjudged  against  them  in  said  sections,  together  with 

interest  thereon  from  January  ,     But  said  debtors  may 

pay  the  amounts  thus  adjudged  against  them  by  executing  to 
P.  S.,  receiver  in  this  cause,  their  several  promissory  notes  for 
the  amounts  severally  found  and  adjudged  due  from  them, 
as  aforesaid,  the  notes  to  be  in  such  sizes  as  the  receiver  may 
determine,  said  notes  to  be  dated  and  bearing  interest  from 

January ,  and  to  be  substantially  in  the  form  set  out  in 

section  No.  7  of  the  agreement  of  stockholders,  dated  , 

and  filed  as  Exhibit  "  A,"  to  said  petition  of  W.  L.,  et  al., 
in  this  cause,  the  said  debtors  in  each  instance  securing  pay- 
ment of  said  notes  by  executing  mortgages  upon  the  proper- 
ties now  mortgaged  by  them  to  said  association;  or,  in  case 
such  mortgages  cannot  be  given,  by  giving  such  other  secu- 


1032  SUITS   IN    EQUITY. 

rity  as  shall  be  satisfactory  to  said  receiver,  said  mortgages 
to  be  executed  to  a  trustee,  to  be  named  by  said  receiver,  and 
to  each  provide  for  foreclosure  in  bar  of  redemption,  when 
the  notes  secured  •  thereby  shall  become  due  and  enforceable, 
and  also  provide  that  the  mortgagors  shall  keep  the  prop- 
erty insured  for  the  benefit  of  the  mortgagee,  and  keep  the 
taxes  paid.  And  the  receiver  in  this  cause  is  authorized  and 
directed  to  make  settlements  with  said  debtors  to  the  associa- 
tion, as  provided  in  said  agreement  of  February  ,  and 

this  decree,  and  report  said  settlement,  together  with  the  notes 
and  mortgages  received  by  him,  to  this  court  as  soon  as  prac- 
ticable. But  the  court  hereby  expressly  reserves  the  right 
to  make  all  further  and  additional  orders  and  decrees  to  fore- 
close the  mortgages,  executed  by  said  debtors  and  borrowing 
stockholders,  to  said  association  for  the  security  of  their  sev- 
eral loans  received  from  said  association,  in  all  cases  where 
said  debtors  refuse  or  fail  to  make  settlements  of  their  said 
indebtedness,  as  hereinabove  provided;  and  to  take  all  neces- 
sary further  steps  by  sales  of  said  property  under  said  mort- 
gages to  enforce  satisfaction  of  the  aforesaid  decrees  in  fa- 
vor of  said  association ;  and  to  take  such  other  and  different 
steps  and  proceedings  by  transfers  of  the  present  mortgages 
to  the  association,  or  otherwise,  as  may  be  deemed  necessary 
to  secure  payment  of  the  indebtedness  from  said  borrowers 
to  said  association. 

Whereas  it  appears  to  the  court  said  debtors  of  said  as- 
sociation have  hereinbefore  been  credited  with  only  ninety 
per  cent,  of  the  ascertained  value  of  their  stock,  and  ten  per 
cent,  thereof  has  thereby  been  held  back  to  meet  possible  loss- 
es on  stock  arising  from  litigation,  expenses  and  depreciation 
of  property. 

It  is  further  ordered  and  decreed :  That  if,  after  the  wind- 
ing up  of  said  association  in  this  cause,  it  shall  appear  that 

all  of  said per  cent.,  thus  retained,  is  not  necessary  for 

said  purposes,  that  part  of  said  per  cent,  which  shall 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1033 

appear  to  have  been  kept  back  unnecessarily  shall  be  credited 
and  distributed  pro  rata  to  the  stockholders  from  whom  it  has 
been  thus  retained,  and  the  amounts  going  to  the  aforesaid 
borrowing  stockholders  respectively  shall  be  credited  upon 
their  notes  executed  to  the  receiver,  as  aforesaid. 

Fifth.  That  this  cause  be  retained  upon  the  docket  of  the 
court  to  pronounce  all  further  orders  and  decrees,  and  take 
all  further  proceedings  necessary  to  carry  out  and  execute 
the  terms  of  this  decree,  and  to  secure  payment  of  the  decrees 
hereinbefore  pronounced  in  favor  of  said  association,  and  to 
make  distribution  of  said  notes  and  mortgages  and  the  real 
estate  and  other  property  of  the  association  upon  its  indebted- 
ness and  to  its  creditors,  hereinbefore  adjudged  in  accordance 

with  said  agreement  of ,  and  to  wind  up  said  association. 

The  receiver  in  this  cause  is  hereby  authorized  to  have  neces- 
sary blank  notes  and  mortgages  printed  to  carry  out  the  di- 
rections of  this  decree. 

Sixth.  And  it  appearing  to  the  court  that  there  are  a  num- 
ber of  petitions  in  this  cause  setting  up  small  claims  for  taxes, 
etc.,  and  that  the  receiver  is  able  to  make  favorable  compro- 
mises of  said  claims,  he  is  hereby  authorized  and  empowered 
to  make  compromises  of  any  and  all  of  said  claims  in  such 
manner  as  his  judgment  may  dictate,,  and  to  carry  out  any 
compromise  which  he  has  already  prepared  of  such  claims; 
and  he  will  report  to  this  court  any  and  all  compromises  thus 
made  by  him.  This  is  not  to  restrict  the  power  heretofore 
given  him  by  decree  to  make  compromises  with  borrowing 
stockholders. 


.  No.  706. 

Decree  in  Stockholders'   Suit  against  Building  Association. 

[Caption.'] 

This  cause  coming  on  for  decretal  order  on  this day 

of ,  before  the  Hon.  C.  D.,  upon  the  pleading,  exhibits 


1034  SUITS    IN    EQUITY. 

on  file,  including  the  agreement  for  settlement  between  the 
stockholders  filed  with  stockholders'  petition,  the  reports  of 
receiver,  and  the  whole  record  in  the  cause,  from  all  of  which 
it  appears  that  at  the  time  of  the  appointment  of  the  receiver 
the  C.  D,  Building  &  Lx)an  Association  was  the  owner  of  the 

following  described  i6  pieces  of  real  estate,  situate  in  

county,  ,  viz. :  [Here  copy  descriptions  of  said  real  es- 
tate from  Exhibit  to  report  of  receiver']  ;  that  the  invest- 
ing of  non-borrowing  stockholders  of  defendant  corporation 
agreed,  for  the  purpose  of  saving  expenses  and  preventing 
depreciation  of  said  real  estate  by  forced  sale  of  the  same  to 
take  said  real  estate  at  a  fair  valuation;  that  the  respective 
values  set  after  the  several  pieces  of  real  estate  hereinabove  de- 
scribed were  fixed  in  pursuance  of  the  agreement  of  settlement 
filed  in  this  cause,  by  a  committee  consisting  of  borrowing 
and  non-borrowing  stockholders,  and  that  said  values  are 
fair  and  reasonable : 

It  is  therefore  ordered  and  decreed  that  all  the  right,  title, 
interest  and  demand,  both  legal  and  equitable,  of  the  defend- 
ant, C.  D.  Building  &  Loan  Association,  in  and  to  said  i6 
parcels  of  real  estate,  hereinabove  described,  be  and  the  same 
hereby  is  divested  out  of  said  C.  D.  Building  &  Loan  Asso- 
ciation and  vested  in,  Peter  Staub,  as  trustee  for  the  non- 
borrowing  or  investing  stockholders  as  a  class,  said  non-bor- 
rowing stockholders  being  as  follows,  and  their  holding  of 
stock  being  the  amounts  severally  set  after  their  respective 
names,  to  wit: 

And  it  is  decreed  that  the  amount  of  said  valuation,  to  wit, 

$ ,  be  charged  against  said  stockholders  as  a  payment 

pro  tanto  upon  their  said  stock. 

It  further  appearing  to  the  court  that  in  pursuance  of 
said  agreement  between  the  stockholders  and  the  decree  pass- 
ed and  entered  in  this  cause ,  the  receiver,  P.  S.,  has  in 

settlement  with  borrowing  stockholders  received  from  them 
notes  secured  by  mortgages  upon  real  estate  as  follows: 


NOTICES,    MOTIONS,    ORDERS,    ETC.  1035 

And  that  the  investing  or  non-borrowing  stockholders 
agreed  to  accept  said  note  and  mortgages  at  their  face  value 
as  a  payment  pro  tanto  upon  their  stock  as  a  class. 

It   is   therefore   ordered,   adjudged   and   decreed   that  the 

amount  of  said  notes  and  mortgages,  to  wit,  $ ,  be  charged 

against  said  stockholders  as  a  payment  pro  tanto  upon  their 
said  stock,  and  that  said  P.  S.,  as  trustee  for  the  aforesaid 
investing  stockholders,  take  and  hold  said  notes  and  the  mort- 
gages made  to  him  to  secure  the  same  in  accordance  with  the 
terms  of  the  aforesaid  agreement  between  stockholders. 

It  is  further  decreed  that  said  P.  S.  hold  said  i6  pieces  of 
real  estate  and  said  notes  and  mortgages  in  trust  for  the  use 
and  benefit  of  the  aforesaid  investing  stockholders,  accord- 
ing to  the  amount  of  stock  owned  or  held  by  them  as  herein- 
above stated,  and  upon  the  following  trusts,  to  wit :  He  shall 
hold  said  titles  until  there  shall  be  a  meeting  of  said  stockhold- 
ers, and  they  shall  decide  by  a  vote  of  a  majority  in  interest 
whether  said  notes  and  realty  shall  be  divided  or  partitioned 
among  said  stockholders,  or  sold  for  distribution  of  proceeds 
by  a  committee  of  three,  to  be  appointed  by  them  equitably  ac- 
cording to  the  value  and  solvency  of  said  properties  and  notes 
divided,  or  shall  be  sold  in  whole  or  in  part  for  distribution 
and  until  said  properties  and  notes  shall  be  divided  and  par- 
titioned among  said  stockholders  in  some  manner  according 
to  law,  and  he  shall,  in  accordance  with  such  vote  of  said 
stockholders,  make  or  cause  to  be  made  partition  of  said  prop- 
erties, or  the  proceeds  thereof  among  those  entitled  as  afore- 
said ;  and  he  shall  have  full  power  and  authority  to  assign  said 
notes  and  the  mortgages  securing  the  same,  and  such  parts 
of  the  same,  to  the  several  stockholders  as  may  be  necessary 
to  make  proper  division  thereof  among  the  same ;  and  he  also 
shall  have  power  in  carrying  out  the  wishes  of  said  stockhold- 
ers aforesaid  to  make  all  proper  conveyances  of  said  real  es- 
tate and  of  said  notes  and  mortgages. 

It  is  further  decreed  that  the  amount  of  said  notes  as  afore- 


1036  SUITS   IN    EQUITY. 

said  be  charged  to  said  investing  stockholders  as  assets  of 
said  association,  and  be  credited  as  having  been  paid  to  said 
investing  or  non-borrowing  stockholders. 

It  is  further  ordered  and  decreed  by  the  court  that  in  fur- 
therance of  this  decree  the  President  and  Secretary  of  the  C. 
D.  Building  &  Loan  Association  execute,  acknowledge  and 
deliver  in  the  name  and  on  behalf  of  said  association  a  deed, 
in  proper  form,  to  the  said  P.  S.,  trustee,  for  said  i6  pieces 
of  real  estate  above  described. 

It  further  appearing  to  the  court  that  P.  S.,  trustee,  has 

in  his  hands  sums  amounting  to  $ ,  received  as  payment 

of  principal  and  interest  upon  the  aforesaid  notes  executed  to 
him  under  and  by  virtue  of  said  agreement  of  stockholders, 

and  the  decree  of  this  court  of  September ,  and  that  said 

amount  belongs  to  the  aforesaid  non-borrowing  stockholders, 
said  P.  S.  is  ordered  and  directed  to  make  division  of  said 
moneys  among  said  stockholders  upon  their  said  stock  hold- 
ings pro  rata,  or  in  such  manner  as  said  stockholders  shall  di- 
rect. 

It  further  appearing  that  said  P.  S.,  as  receiver  has  the 

sum  of  $ in  his  hands  belonging  to  the  association  and 

received  from  other  sources,   it  is  ordered  that  the  sum  of 

$ be  retained  for  the  present  to  pay  the  expenses  of  this 

cause  under  the  further  orders  of  the  court,  and  that  the  re- 
mainder be  distributed  to  and  among  said  non-borrowing 
stockholders  pro  rata.  The  case  is  retained  in  court  for  such 
future  orders  and  direction  as  may  be  necessary. 

Enter  this. 


No.  707. 

Decree  Dissolving  Restraining  Order  and  Refusing  Leave  to 
Intervene  by  Purchaser. 

[Caption.l 

This  cause  came  on  this  day  to  be  heard  upon  the  petition 
filed  herein  by  C.  M..  receiver  of  the  C.  &  D.  Railroad  Com- 


NOTICES,    MOTIONS,  ORDERS,    ETC.  1037 

pany,  appointed  under  a  decree  in  this  cause  against  the  city 

of and  the  individuals  named  as  defendants  constituting 

its  legislative  council  and  upon  the  answers  of  said  defend- 
ants thereto  and  upon  the  orders  heretofore  had  in  this  cause 
and  the  depositions  and  other  proofs  on  file  herein ;  and  there- 
upon the  defendants  moved  to  the  court  to  dismiss 
said  petition  and  dissolve  the  restraining  order  hereto- 
fore issued  in  this  cause  upon  the  ground  that  it 
appeared  by  decree  entered  herein  that  said  C.  M,  as  such 
receiver  was  discharged  from  further  service  as  such  by  decree 

of   this   court   entered    herein   ,    and    upon   the    further 

ground  that  it  appeared  that  the  properties  and  assets  of  the 
said  railroad  company  had  been  sold  by  decree  of  the  court 
entered  in  the  cause  of  A.  B.  Trust  Company  vs.  C.  D.  Rail- 
road Company  pending  in  this  court,  on  the day  of , 

and  all  of  said  properties  and  assets  had  been  delivered  to  the 
purchaser  by  said  receiver.  And  thereupon  came  the  South- 
ern Railway  Company  and  presented  its  petition  in  open  court 
asking  leave  as  the  purchaser  of  said  properties  and  assets, 
rights  of  action  and  choses  in  action  to  be  substituted  as  a 
party  complainant  herein  in  lieu  and  stead  of  said  C.  M.,  re- 
ceiver. The  court  having  considered  said  motion  refused  to 
allow  said  petition  of  the  Southern  Railway  Company  to  be 
filed  herein  and  to  allow  said  company  to  be  substituted  as  a 
party  complainant  hereto  in  the  room  and  stead  of  C.  M.,  re- 
ceiver. And  thereupon  the  court  having  considered  the  mo- 
tion made  by  said  defendants  to  dismiss  the  petition  filed  by 
said  receiver  and  to  dissolve  the  restraining  order  hereto- 
fore issued  herein  does  grant  the  same.  It  is  therefore  order- 
ed, adjudged  and  decreed  that  the  petition  filed  herein  and  the 
amendment  thereto,  by  said  C.  M.,  receiver  against  the  city 

of be  and  the  same  is  hereby  dismissed,  the  court  being 

of  opinion  that  the  sale  of  said  property  and  the  order  en- 
tered discharging  said  receiver  operate  to  and  did  abate  this 
action.     It  is  further  ordered  that  the  restraining  order  here- 


1038  SUITS    IN    EQUITY. 

tofore  issued  m  this  cause  on  said  petition  be  and  it  is  hereby 
dissolved  and  discharged.  The  court  having  reached  this 
conclusion  did  not  consider  the  case  upon  its  merits.  This 
decree  is  entered  without  prejudice  to  the  rights  of  the  South- 
ern Railway  Company  to  bring  any  new  and  independent  ac- 
tion to  protect  its  purchased  interest.  All  of  which  is  finally 
ordered  and  decreed. 


No.  708. 

Decree  for  the  Pi.\mtifF  with  Lien  and  Order  for  Sale. 

[Caption.l 

This  cause  came  on  tT  he  heard  at  this  term  upon  the  plead- 
ings, proof  and  report  of  the  Special  Master  filed  herein  July 

I  St, ,  and  annexed  hereto,  and  the  exceptions  thereto,  and 

was  argued  by  counsel.  AiM  thereupon,  upon  consideration 
thereof,  it  was  ordered,  adjudged  and  decreed  that  said  re- 
port of  the  Special  Master  filed  herein  July  ist,  ,  and 

hereto  annexed,  be,  in  all  things,  confirmed.  And  it  appear- 
ing from  an  inspection  of  said  report  that  the  defendants,  P. 
C.  and  A.  C,  are  indebted  to  the  Southern  Building  &  Loan 

Association  in  the  sum  of  $ ,  with  JJ^- accrued  interest, 

aggregating  $ ,  the  amount  of  said  indebtedness  so  ad- 
judged, it  was  further  ordered,  adjudged  and  decreed  that 
complainant,  the  Southern  Building  &  Loan  Association,  have 

and  recover  of  the  defendant,  P.  C,  the  said  sum  of  $ , 

with  interest  until  paid,  and  the  costs  of  this  cause,  for  which 
execution  will  issue. 

And  it  was  further  ordered,  adjudged  and  decreed  that  said 

sum  of  $ ,  with  accruing  interest,  is  a  lien  upon  the  lot 

or  parcel  of  ground  described  :n  the  bill,  situate  in  the  city  of 

,  county  of and  state  of ,  to  wit :     [Desc^'Ibe  the 

property  on  which  the  Hen  is  to  attach.'] 

And  it  was  further  ordered,  adjudged  and  decreed  th^t  if 
said  sum  of  money  with  accruing  interest,  and  the  costs  of  Ikis 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  1039 

cause,  are  not  paid  or  caused  to  be  paid  by  the  defendants, 
P.  C.  and  A.  C,  within  ninety  (90)  days  from  the  entry  of 
this  decree,   then  J.   N.,  special  master,  after  giving  thirty 

(30)    days'   notice,   by   advertisement   in   the  Evening 

Scimitar  once  a  week  for  four  successive  weeks,  will  sell  said 
lot  or  parcel  of  ground  to  the  highest  bidder  for  cash  at 

public  vendue,  at  the  door  of  the  court-house  of county, 

in  the  city  of  ,  in  bar  and  free  of  all  right  and  equity 

of  redemption  in  said  defendants. 

The  costs  in  this  cause  will  be  paid  in  the  first  instance 
out  of  the  proceeds  of  such  sale. 


No.  709. 

Interlocutory  Decree  Granting  Permanent  In  junction*  and 
Appointing  Special  Master. 

[Caption.] 

This  cause  came  on  to  be  heard  at  this  term  on  January 
4,  1916,  in  the  federal  court  at  St.  Paul,  Minnesota,  upon 
the  motions  of  both  complainant  and  defendant,  for  judg- 
ment upon  the  pleadings,  and  was  argued  by  counsel,  Mr. 
Amasa  C.  Paul  appearing  for  the  complainant  and  Mr.  C.  D. 
O'Brien  for  the  defendant;  and  thereupon,  upon  considera- 
tion thereof,  it  was  ordered,  adjudged  and  decreed  as  fol- 
lows, viz: 

1.  That  the  complainant,  the  B.  V.  D.  Company,  is  and 
has  been  since  the  2nd  day  of  January,  1914,  the  owner  and 
sole  proprietor  of  a  certain  print  for  which  it  duly  obtained 
a  copyright  on  January  2,  1914,  and  for  which  the  com- 
missioner of  patents  issued  to  complainant,  as  provided  by 
law,  a  copy  of  the  copyright  record  under  the  seal  of  the 
commissioner  of  patents,  No.  3476,  dated  January  27,  1914; 
that  said  copyright  is  good  and  valid  at  law,  and  that  a 
specimen  of  the  reproduction  of  the  said  copyrighted  print 
is  annexed  to  the  bill  of  complaint  as  Exhibit  "A." 

2.  That  the  defendant.  The  Golden  Rule,  Inc.,  has  unlaw- 
fully and  wrongfully  duplicated,  copied  and  reproduced, 
without   permission    from    the   complainant,    the    said    copy- 


1040  SUITS    IN    EQUITY. 

righted  print,  and  has  caused  said  copies  to  be  reproduced 
in  the  public  press  for  its  own  benefit  and  without  right,  and 
in  infringement  of  the  exclusive  right  granted  and  secured 
to  the  complainant  under  and  by  virtue  of  said  copyright; 
that  a  specimen  of  defendant's  infringing  print  is  attached 
to  the  complaint  herein  and  marked  Exhibit  "B." 

3.  That  a  perpetual  injunction  be  issued  enjoining  and 
restraining  the  defendant,  its  servants,  agents,  attorneys  and 
workmen,  and  each  and  every  of  them,  from  in  any  manner 
violating  the  complainant's  said  copyright,  or  exhibiting, 
reproducing,  copying,  or  causing  to  be  reproduced  or  copied, 
printing,  or  causing  to  be  printed,  the  complainant's  said 
copyrighted  print,  and  from  in  any  manner  whatsoever  in- 
fringing upon  complainant's  copyright. 

4.  That  this  cause  be  referred  to  Samuel  Whaley,  Esq., 
of  St.  Paul,  Minnesota,  as  special  master,  to  ascertain  and 
report  to  this  court  the  amount  of  damages  that  complain- 
ant has  sustained  by  reason  of  the  infringement  of  said  copy- 
right by  the  defendant. 

5.  That  the  complainant  recover  its  costs  of  suit,  the 
amount  of  which  shall  be  determined  by  the  court,  or  under 
its  direction,  after  the  coming  in  of  the  master's  report. 

Wilbur  F.  Booth,  Judge. 
Taken  from  The  Golden  Rule  v.  B.  V.  D.  Co..  155  C.  C.  A.  517. 


No.  710. 

Decree  Embodying  Findings  of  Fact  and  Conclusions  of  Law, 
Granting  Injunction. 

[Caption.'] 

This  cause  coming  on  for  final  hearing  this  21st  day  of 
October,  1915,  pursuant  to  the  order  of  the  court  heretofore, 
to-wit,  on  the  21st  day  of  September,  1915.  made  and  en- 
tered herein,  and  the  complainants,  Theo.  Hamm  Brewing 
Company,  Minneapolis  Brewing  Company,  G.  Heileman 
Brewing  Company  and  Rock  Island  Brewing  Company,  ap- 
pearing by  their  solicitors,  F.  W.  ZoUman  and  E.  B.  Cresap, 
and   the  defendant,   The   Chicago,   Rock   Island   and   Pacific 


NOTICES,    MOTIONS,    ORDERS,   DECREES,   ETC.  1041 

Railway  Company,  appearing  by  its  solicitor,  A.  B.  Enoch, 
and  the  defendant,  Jacob  M.  Dickinson,  as  receiver  of  The 
Chicago,  Rock  Island  and  Pacific  Railway  Company,  and 
successor  to  the  defendants,  Jacob  M.  JDickinson  and  Henry 
U.  Mudge,  as  receivers  of  The  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  appearing  by  his  solicitor,  M.  L. 
Bell,  and  the  state  of  Iowa,  pursuant  to  leave  of  court  here- 
tofore granted,  having  this  day  filed  its  intervening  petition 
herein  and  appearing  by  its  solicitor,  C.  A.  Robbins,  the 
assistant  attorney  general  of  said  state  of  Iowa,  and  the 
said  parties  so  appearing  by  their  respective  solicitors,  as 
aforesaid,  having  agreed  and  stipulated  in  open  court  that 
the  answer  heretofore  filed  by  Jacob  M.  Dickinson  and 
Henry  U.  Mudge,  as  receivers  of  The  Chicago,  Rock  Island 
and  Pacific  Railway  Company,  may  stand  and  be  taken  as 
and  for  the  answer  of  Jacob  M.  Dickinson,  now  sole  receiver 
of  said  The  Chicago,  Rock  Island  and  Pacific  Railway  Com- 
pany, and  having  further  stipulated  and  agreed  in  open 
court  that  this  cause  now  proceed  to  final  hearing  and  de- 
cree on  the  bill  of  complaint,  the  answer  of  The  Chicago, 
Rock  Island  and  Pacific  RaiKvay  Company,  the  answer  of 
Jacob  M.  Dickinson  and  Henry  U.  Mudge,  as  receivers  of 
The  Chicago,  Rock  Island  and  Pacific  Railway  Company, 
treated  as  the  answer  of  the  said  Jacob  M.  Dickinson,  now 
sole  receiver  of  said  The  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  and  the  intervening  petition  of  the  state 
of  Iowa,  all  heretofore  filed  herein,  and  the  court  having 
heard  the  arguments  of  counsel,  and  being  fully  advised, 
now  makes  the  following  findings  of  fact  and  conclusions 
of  law : 

Findings  of  Fact. 

1.  That  the  facts  set  forth  in  the  bill  of  complaint  are 
true. 

2.  That  at  the  time  this  suit  was  begun  and  the  bill  of 
complaint,  answer  of  The  Chicago,  Rock  Island  and  Pacific 
Railway  Company,  and  the  answer  of  the  defendants,  Jacob 
M.  Dickinson  and  Henry  U.  Mudge,  as  receivers  of  The 
Chicago,   Rock  Island  and   Pacific  Railway   Company,   were 


1042 


SUITS   IN    EQUITY. 


filed,  the  said  Jacob  M.  Dickinson  and  Henry  U.  Mudge 
were  the  receivers  of  the  said  The  Chicago,  Rock  Island  and 
Pacific  Railway  Company,  duly  appointed  by  the  court, 
qualified  and  acting,  and  that  since  said  time  said  Henry  U. 
Mudge  resigned  as  such  receiver  and  the  said  Jacob  M. 
Dickinson  is  now  the  sole  receiver  of  the  said  The  Chicago, 
Rock  Island  and  Pacific  Railway  Company. 

Conclusions  at  Law. 

1.  That  the   court  has  jurisdiction  of  the  parties  to  this* 
suit  and. of  the  subject-matter  thereof. 

2.  That  complainants  are  entitled  to  the  relief  prayed  for 
in  their  said  bill  of  complaint. 

3.  That  the  intervening  petitioner,  the  state  of  Iowa,  is 
not  entitled  to  the  relief  prayed  for  in  its  said  intervening 
petition,  or  any  part  thereof. 

Wherefore  it  is  now  by  the  court  ordered,  adjudged  and 
decreed  as  follows,  to-wit: 

1.  That  the  answer  of  the  defendants,  Jacob  M.  Dickinson 
and  Henry  U.  Mudge,  receivers  of  The  Chicago,  Rock 
Island  and  Pacific  Railway  Company,  heretofore  filed  herein, 
stand  and  be  taken  as  and  for  the  answer  of  Jacob  M.  Dick- 
inson, sole  receiver  of  said  railway  company. 

2.  That  the  defendant,  Jacob  M.  Dickinson,  as  receiver 
for  the  said  The  Chicago,  Rock  Island  and  Pacific  Railway, 
be  and  he  hereby  is  permanently  restrained  and  enjoined 
from  refusing  or  failing  to  accept,  receive,  transport,  carry 
and  deliver  any  beer  or  other  fermented  malt  liquors,  sold 
and  consigned  in  Minnesota,  Wisconsin  or  Illinois  by  the 
complainants,  or  either  or  any  of  them,  or  any  other  person 
or  corporation  similarly  situated,  to  persons  residing  in  the 
state  of  Iowa  who  shall  have  purchased  the  same  for  their 
own  lawful  purposes  and  private  consumption,  whenever 
such  bona  Ude  purchaser  and  consignee  shall,  in  each  in- 
stance, in  writing  authorize  the  delivery  of  the  same  by  the 
carrier  to  some  designated  drayman  or  other  person,  for  the 
purpose  of  carrying  the  same  from  the  railway  stations  of 
The  Chicago,  Rock  Island  and  Pacific  Railway  Company  to 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1043 

the  residences  of  snch  purchasers  and  consignees,  in  which 
said  writing  the  said  purchasers  or  consignees  shall  also  have 
certified  that  said  beer  and  fermented  malt  liquors  are  for 
his  own  private  consumption,  and  said  Jacob  M.  Dickinson, 
as  receiver  aforesaid,  is  hereby  commanded  to  accept,  re- 
ceive, transport  and  deliver  all  of  such  shipments  upon  said 
terms,  provided  further  that  each  shipment  of  such  beer  or 
other  fermented  malt  liquors  be,  before  delivery  to  said  car- 
rier for  transportation  aforesaid,  plainly  marked  or  branded 
"Intended  'for  Personal  Use  and  Private  Consumption." 

Further  ordered,  adjudged  and  decreed  that  a  writ  of  in- 
junction issue  out  of  this  court  in  accordance  with  the  fore- 
going order. 

Further  ordered,  that  the  exceptions  of  the  defendant, 
Jacob  M.  Dickinson,  as  receiver  of  the  said  The  Chicago, 
Rock  Island  and  Pacific  Railway  Company,  and  the  excep- 
tions of  the  said  intervening  petitioner,  the  state  of  Iowa, 
taken  in  open  court  to  this  decree  and  every  part  thereof,  be 
noted  and  allowed,  and  leave  to  them  and  each  of  them  to 
appeal  is  hereby  granted,  on  the  filing  of  a  bond  in  the  sum 
of  $100  within  30  days  from  the  entry  of  this  order. 

Dated  October  21,  1915. 

Enter:  Carpenter,  Judge. 


No.  711. 

Interlocutory  Decree  in  Suit  Involving  Water  Rights. 

[Caption.] 

This  cause  coming  on  to  be  heard  at  this  term  of  this 
court  and  having  been  duly  presented,  thereupon,  on  con- 
sideration thereof,  it  is  ordered,  adjudged  and  decreed  as 
follows : 

That  the  defendant.  Twin  Falls  Salmon  River  Land  and 
Water  Company,  contracted  with  the  state  of  Idaho  and 
with  the  settlers  holding  agreements  for  the  purchase  and 
sale  of  water  rights,  that  it,  the  said  defendant,  would  pro- 
vide a  system  of  canals  and  reservoirs  on  what  is  known  as 


1044  SUITS   IN    EQUITY. 

the  Salmon  river  project,  in  Twin  Falls  county,  state  of 
Idaho,  which  in  ordinary  seasons  would  furnish  a  supply  of 
water  for  irrigation  purposes  sufficient  for  the  acreage  cov- 
ered by  such  settlers'  agreements  at  the  rate  of  two  and 
three-fourths  acre  feet  per  acre,  measured  at  the  points  of 
delivery  from  the  system  into  the  consumers'  laterals;  and 
further,  that  it  would  not  sell  rights  in  excess  of  such  avail- 
able supply.  That  the  said  defendant  be  restrained  from 
making  additional  contracts  for  the  sale  of  water  rights  and 
also  from  waiving  the  right  to  forfeit  any  existing  contract. 
That  the  said  defendant  and  the  Commonwealth  Trust  Com- 
pany of  Pittsburgh,  a  corporation,  trustee,  and  A.  C.  Robin- 
son be,  and  each  of  them  is,  hereby  enjoined  and  restrained 
from  collecting  or  attempting  to  collect,  or  from  enforcing 
payments  upon  said  water  right  agreements,  including  any 
overdue  payments  or  installments  on  said  agreements,  until 
such  time  as  the  holders  thereof  have  been  provided  with  the 
water  supply  so  contracted  for,  or  are  given  trustworthy 
assurance,  to  be  approved  by  the  court,  that  said  water  will 
be  provided,  or  until  the  further  order  of  this  court. 

It  is  further  ordered  and  decreed  that  jurisdiction  be  re- 
tained for  the  purpose  of  making  final  disposition  of  the 
cause,  and  leave  is  hereby  granted  to  either  party  to  make 
application  at  any  time  for  the  introduction  of  further  proof 
touching  the  available  water  supply,  and  more  particularly 
relating  to  (1)  the  amount  and  dignity  of  the  rights  award- 
ed to  adverse  claimants  in  the  suit  of  Twin  Falls  Salmon 
River  Land  and  Water  Company  et  al.  vs.  Vineyard  Land 
and  Stock  Company,  now  pending  in  this  court  and  num- 
bered 405;  (2)  seepage  in  the  reservoir  basin  and  the  canal 
system;  and  (3)  the  aggregate  amount  of  water  agreements 
actually  outstanding  at  the  time  of  such  application,  and 
upon  the  submission  of  such  proof  for  the  entry  of  final 
decree. 

Dated  this  29th  day  of  November,  1915. 

Frank  S.  Dietrich,  Judge. 


NOTICES,    MOTIONS,    ORDERS,   DECREES,   ETC.  1045 

No.  712. 

Final  Decree  in  Copyright  Infringement. 
[Caption.] 

This  cause  came  on  to  be  heard  on  the  bill  of  complaint, 
answer  and  the  proofs  taken  in  open  court  during-  the  May, 
1916,  term,  and  was  argued  by  counsel,  and  thereupon,  upon 
consideration  thereof,  it  was 

Ordered,  adjudged  and  decreed: 

1.  That  the  plaintiff  is  and  has  been  at  all  times  the  owner 
of  a  good  and  valid  copyright  of  the  publication  entitled 
"Hendricks'  Commercial  Register  of  the  United  States,  for 
Buyers  and  Sellers,  Twenty-third  Annual  Edition,"  duly 
registered  in  the  United  States  copyright  office,  upon  which 
a  certificate  of  copyright  registration  was  duly  issued  by  the 
register  of  copyrights,  dated  and  identified  as  follows:  "Sep- 
tember 14,  1914,  Class  A-XXc,  No.  379,504." 

2.  That  the  defendant  herein  has  infringed  upon  the  said 
copyright  and  upon  the  exclusive  rights  of  plaintiff  there- 
under by  making,  copying,  printing,  publishing,  selling  and 
advertising  books  or  publications  known  as  "Thomas'  Regis- 
ter of  American  Manufacturers,  Seventh  Edition,"  contain- 
ing and  embodying  in  the  appendix  thereto  the  lists  of 
"architects"  and  "machinists  and  founders"  appearing  in  said 
copyrighted  publication. 

3.  That  a  perpetual  injunction  issue  out  of  and  under  the 
seal  of  this  honorable  court,  directed  to  the  said  defendant, 
Thomas  Publishing  Company,  its  officers,  servants,  agents, 
attorneys,  workmen,  and  each  and  every  of  them,  enjoining 
and  restraining  them  and  each  of  them  from  directly  or 
indirectly  making  or  causing  to  be  made,  copying  or  causing 
to  be  copied,  printing  or  causing  to  be  printed,  publishing  or 
causing  to  be  published,  selling  or  causing  to  be  sold,  adver- 
tising or  causing  to  be  advertised,  vending  or  offering  for 
sale,  or  being  in  any  wise  concerned  in  the  making,  copying, 
printing,  publishing,  selling,  advertising,  vending  or  offering 


1046  SUITS    IN    EQUITY. 

for  sale,  or  giving  away  any  work  containing  any  list  of 
"architects"  or  list  of  "machinists  and  founders"  in  infringe- 
ment of  said  copyrighted  book  or  publication,  and  from  in 
any  wise  doing  said  or  any  of  said  acts  in  respect  to  said 
"architects"  and  "machinists  and  founders"  lists  in  any 
future  publication  in  infringement  of  said  copyrighted  book 
or  publication. 

4.  That  the  defendant,  Thomas  Publishing  Company,  de- 
liver up  to  the  marshal  of  this  district,  on  oath,  forthwith 
on  the  service  of  said  perpetual  injunction  by  said  marshal, 
all  of  the  lists  of  "architects"  and  lists  of  "machinists  and 
founders,"  which  lists  are  infringements  of  plaintiff's  said 
copyrighted  publication,  in  the  possession  of  said  defendant, 
Thomas  Publishing  Company,  or  in  the  possession  of  its 
officers,  servants,  agents,  attorneys  and  workmen,  and  each 
and  every  of  them,  all  such  copies  so  delivered  up,  and  also 
lists  of  "architects"  and  lists  of  "machinists  and  founders" 
contained  in  the  twenty-nine  books  or  publications  entitled 
"Thomas'  Register  .of  American  Manufacturers,  Seventh 
Edition,"  herein  and  now  in  the  possession  of  the  marshal, 
to  be  destroyed  by  the  marshal  thirty  days  after  the  service 
of  said  perpetual  injunction. 

5.  That  plaintiff,  having  waived  an  accounting  of  profits, 
the  damages  which  the  defendant  is  hereby  ordered  to  pay 
to  the  plaintiff  by  reason  of  the  infringement  of  said  publica- 
tion are  hereby  assessed  at  twenty-five  hundred  ($2,500) 
dollars,  and  judgment  issue  against  the  defendant  therefor. 

6.  That  Schechter  &  Lotsch,  Esqs.,  of  No.  10  Wall  street, 
New  York,  solicitors  for  plaintiff  herein,  be  and  they  hereby 
are  awarded  and  allowed  the  sum  and  amount  of  twenty- 
five  hundred  ($2,500)  dollars  as  a  reasonable  attorneys'  fee 
in  the  premises,  which  the  defendant  is  hereby  ordered  to 
pay,  and  judgment  issue  against  the  defendant  therefor. 

7.  That  the  plaintiff  recover  of  the  defendant  its  costs  of 
this  suit,  to  be  taxed,  and  judgment  issue  against  the  defend- 
ant therefor. 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  1047 

8.  That  the  bonds  given  by  the  plaintiff  herein,  with  the 
National  Surety  Company  as  surety,  to-wit,  bond  for  one 
thousand  ($1,000)  dollars,  dated  the  10th  day  of  March, 
1916,  and  bond  for  two  thousand  ($2,000)  dollars,  dated 
the  29th  day  of  March,  1916,  both  in  favor  of  said  defend- 
ant, be  and  the  same  are  hereby  cancelled  and  discharged, 
and  the  plaintiff  and  its  surety  released  and  discharged  from 
all  liability  thereon.  Learned  Hand, 

United  States  District  Judge. 


No.  713. 

Final  Decree  where  Trustee  Sues  for  Mortgage  Bondholders. 

[Caption.] 

On  this  the  28th  day  of  July,  1917,  came  on  to  be  heard 
at  this  term,  upon  the  pleadings,  proof  and  report  of  the 
special  master  filed  herein  on  the  8th  day  of  February,  1917, 
and  the  exceptions  to  said  report,  and  was  argued  by  coun- 
sel, and  thereupon  the  court  examined  and  carefully  con- 
sidered the  testimony  taken  by  the  special  master  as  well  as 
the  pleadings  of  all  the  parties  herein,  and  without  adopting 
as  a  whole  the  report  of  said  master,  the  court  thereupon 
proceeded  to  render  judgment  in  accordance  with  its  findings 
from  the  pleadings  and  said  proof  so  taken,  and  thereupon, 
it  is  ordered,  adjudged  and  decreed  that  the  defendant, 
Amarillo  Street  Railway  Company,  a  corporation  incorpo- 
rated under  the  laws  of  the  state  of  Texas,  is  indebted  to 
the  plaintiff,  Emile  K.  Boisot,  trustee,  representing  the  hold- 
ers of  the  bonds  issued  by  said  Amarillo  Street  Railway 
Company  and  outstanding,  in  the  sum  of  ninety-eight  thou- 
sand, five  hundred  dollars  ($98,500),  with  interest  thereon 
from  the  first  day  of  July,  1916,  at  the  rate  of  six  per 
centum  per  annum,  aggregating  one  hundred  and  four  thou- 
sand, seven  hundred  eighty-seven  and  43/100  dollars  ($104,- 


1048  SUITS  IN   EQUITY. 

787.43),  the  amount  of  said  indebtedness  so  adjudged,  and 
that  said  sum,  $104,787.43,  with  accruing  interest  at  the 
rate  of  six  per  centum  per  annum  from  date  hereof,  is  a  lien 
upon  all  and  singular  the  property,  real  and  personal,  of  said 
Amarillo  Street  Railway  Company,  including  the  franchise 
granted  by  the  city  of  Amarillo  and  under  which  said  Ama- 
rillo Street  Railway  Company  is  being  operated,  said  prop- 
erty being  more  particularly  described  in  that  certain  mort- 
gage dated  the  first  day  of  July,  1910,  and  recorded  in  the 
deed  of  trust  records  of  Potter  county,  Texas,  in  volume  11, 
pages  175-196,  inclusive,  and  being  as  follows: 

All  of  the  following  described  tracts  of  land  lying  and 
being  situate  in  the  county  of  Potter,  and  state  of  Texas, 
to-wit:     *     *     * 

Third.  The  company's  street  railway  in  the  city  of  Ama- 
rillo, and  additions  thereto,  including  cars,  poles,  electric 
wires  and  all  equipment  therewith  connected,  including  the 
company's  franchise  and  franchise  rights,  together  with  all 
appurtenances  thereto  connected. 

Also,  all  property  of  every  name  and  nature  acquired  by 
said  company  after  the  execution  and  delivery  of  said  mort- 
gage. 

It  is  expressly  decreed,  however,  that  there  is  located  on 
that  certain  strip  of  land  described  in  the  first  section  of 
the  description  of  the  said  property  of  said  Amarillo  Street 
Railway  Company  herein  above  set  out,  certain  machinery 
and  boilers  belonging  to  the  City  Light  &  Water  Company 
and  not  to  Amarillo  Street  Railway  Company,  which  is  ex- 
pressly excepted  from  this  decree  and  is  not  to  be  considered 
in  the  sale  of  the  property  herein  decreed  to  be  made,  to- 

It  was  further  ordered,  adjudged  and  decreed  that  said 
mortgage  set  forth  in  the  bill  of  complaint  herein,  and  here- 
inabove referred  to,  made  by  defendant,  Amarillo  Street 
Railway  Company  to  Emile  K.  Boisot,  trustee,  for  the  hold- 


NOTICES,    MOTIONS,    ORDERS,   DECREES,   ETC.  1049 

ers  of  its  bonds,  dated  July  1,  1910,  is  a  valid  and  subsisting 
mortgage  and  constitutes  a  lien  upon  all  the  property  of  said 
Amarillo  Street  Railway  Company,  as  hereinabove  set  forth. 

It  was  further  ordered,  adjudged  and  decreed  that  all  and 
singular  property  of  Amarillo  Street  Railway  Company,  as 
hereinbefore  described,  shall  be  sold  by  the  receiver,  Guy  W. 
Faller,  who  is  hereby  appointed  special  commissioner  to  sell 
the  same,  which  sale  shall  be  at  public  auction  at  the  door  of 
the  county  court-house  in  Potter  county,  Texas,  on  the  first 
Tuesday  in  September,  1917,  between  the  hours  of  10  o'clock 
a.  m.  and  4  o'clock  p.  m.,  and  said  receiver  shall  first  give  no- 
tice of  said  sale  by  posting  at  three  public  places  in  Potter 
county,  Texas,  one  of  which  shall  be  at  the  door  of  the 
county  court-house,  and  by  publishing  in  the  Amarillo  Daily 
News,  once  each  week  for  four  consecutive  weeks  prior  to 
said  sale,  a  copy  of  said  notice;  and  said  property  shall  be 
sold  by  said  receiver  to  the  highest  bidder,  for  cash  to  him 
in  hand  paid,  and  said  receiver  will,  after  said  sale,  report 
the  same  to  this  court  for  approval  or  rejection. 

It  was  further  ordered,  adjudged  and  decreed  by  the  court 
that  the  special  master  shall  receive  no  bid  from  any  one 
offering  to  bid  for  the  property  above  described  who  has  not 
first  deposited  with  him,  as  a  pledge  that  he  make  good  his 
bid  in  case  of  its  acceptance,  the  sum  of  one  thousand 
($1,000)  dollars  in  money  or  by  certified  check  upon  any 
national  bank  or  trust  company  in  the  city  of  New  York  or 
Amarillo,  Texas. 

Upon  acceptance  of  any  bid  for  such  property,  the  pur- 
chaser shall,  within  ten  days  after  the  approval  by  the  court 
of  said  sale,  deposit  with  said  receiver,  acting  as  special 
master,  the  amount  of  his  bid  for  said  property;  provided, 
however,  that  in  case  the  plaintiff  herein  or  G.  Gordan 
Brownell,  the  owner  and  holder  of  said  bonds,  shall  purchase 
said  property  it  shall  not  be  necessary  for  him  to  deposit  the 
full  amount  of  his  bid,  provided  however,  that  he  shall  pay 


1050  SUITS   IN    EQUITY. 

over  to  the  receiver,  within  ten  days  after  the  approval  by 
the  court  of  said  sale,  the  sum  of  seven  thousand  ($7,000) 
dollars  in  cash  or  by  certified  check  upon  any  national  bank 
or  trust  company  in  the  city  of  New  York  or  Amarillo, 
Texas,  which  said  amount  is  the  smallest  bid  that  the  said 
special  master  is  authorized  to  accept  for  said  property. 

The  deposit  received  from  any  unsuccessful  bidder  shall  be 
returned  to  him  when  the  property  shall  be  struck  down. 

The  deposit  received  from  the  successful  bidder  or  pur- 
chaser shall  be  held  and  applied  on  account  of  the  purchase 
price  of  the  property  for  which  said  bid  was  made. 

In  case  any  bidder  or  purchaser  shall  fail  to  make  good 
his  bid  upon  its  acceptance  by  the  special  master,  or  after 
such  acceptance  shall  fail  to  comply  with  any  order  of  the 
court  relative  to  the  payment  thereof,  or  the  consummation 
of  the  purchase,  then  the  sums  in  cash  deposited  by  such  pur- 
chaser or  purchasers,  as  hereinbefore  provided,  shall  be  for- 
feited as  a  penalty  for  such  failure,  and  shall  be  applied 
towards  the  expense  of  the  resale  and  towards  making  good 
any  deficiency  or  loss  in  case  the  property  shall  be  sold  at  a 
price  less  than  that  bid  at  the  prior  sale.  If  the  court  shall 
not  confirm  the  sale  for  which  the  deposit  shall  have  been 
made,  such  deposit  shall  be  returned  to  the  purchaser. 

In  case  said  property  shall  be  purchased  by  the  holder  of 
said  bonds,  or  the  trustee,  then  he  may  make  good  any  part 
of  his  bid  not  required  to  be  paid  in  cash,  as  hereinbefore 
provided,  by  turning  in  to  be  cancelled  or  credited,  as  here- 
inafter provided,  any  bonds  or  coupons  payable  out  of  the 
proceeds  upon  distribution  thereof,  and  such  purchaser  shall 
be  credited  therefor  on  account  of  his  bid  with  such  sums  as 
would  be  payable  on  such  bonds  and  coupons  had  all  of  the 
purchase  price  or  the  whole  amount  thereof  been  paid  in 
cash. 

It  was  further  ordered  that  any  purchaser  at  said  sale  may 
satisfy  any  part  of  his  bid  over  and  above  the  sum  of  $7,000 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  1051 

by  the  cancellation  and  surrender  of  any  receiver's  certifi- 
cates heretofore  issued  by  the  receiver,  being  four  certificates 
in  the  sum  of  five  hundred  ($500)  dollars  each,  dated  the 
30th  day  of  January,  1917,  in  accordance  with  the  order  of 
this  court  made  and  entered  herein  on  the  26th  day  of  Jan- 
uary, 1917,  and  recorded  in  the  minutes  hereof*  at  volume  1, 
pages  35  to  37. 

The  court  reserves  the  right  to  sell  the  property  upon  such 
notice  as  the  court  shall  direct  in  case  the  purchaser  thereof 
shall  fail  or  omit  to  make  any  payment  on  account  of  any 
unpaid  balance  of  the  purchase  price  after  the  entry  of  the 
order  approving  such  sale. 

It  was  further  ordered  that  in  case  the  receiver  shall  not 
be  able  to  properly  advertise  said  sale  as  herein  provided 
for  the  length  of  time  required  by  this  decree  so  as  to  sell 
the  same  on  the  first  Tuesday  in  September,  then  he  shall 
proceed  in  like  manner  to  advertise  said  property  for  sale, 
and  sell  the  same  on  the  first  Tuesday  in  October,  1917. 

It  was  further  ordered  that  said  Guy  W.  Faller,  as  special 
master,  shall  execute  and  deliver  a  deed  of  conveyance  to  the 
purchaser  or  purchasers  thereof,  on  the  order  of  the  court, 
of  judge  thereof,  confirming  such  sale,  the  court  having  re- 
served the  right  to  appoint  in  term  time  or  at  chambers  an- 
other person  as  such  special  master  with  like  power  in  case 
of  the  death  or  disability  to  act  of  the  special  master  hereby 
designated,  or  in  case  of  his  resignation  or  failure  to  act, 
or  removal  by  the  court. 

It  was  further  ordered  and  decreed  that  the  master  in 
chancery,  Ben  H.  Stone,  Esq..  be  and  he  is  hereby  allowed 
the  sum  of  four  hundred  ($400)  dollars  for  his  services  as 
such  master,  to  be  taxed  as  a  part  of  the  costs  herein,  but 
the  city  of  Amarillo,  intervener,  is  adjudged  and  decreed  to 
pay  the  sum  of  one  hundred  ($100)  dollars  thereof,  and  the 
receiver  the  other  $300  so  adjudged. 


1052 


SUITS   IN    EQUITY. 


It  was  further  ordered,  adjudged  and  decreed  that  Alex 
M.  Mood  be  and  he  is  hereby  allowed  the  sum  of  one  hun- 
dred and  twenty-six  and  30/100  dollars,  for  taking  down,  as 
stenographer,  the  testimony  before  the  master,  of  which  sum 
one-fourth  is  hereby  adjudged  to  be  paid  by  the  city  of 
Amarillo,  intervener,  and  three-fourths  by  the  receiver. 

It  was  further  ordered,  adjudged  and  decreed  that  the 
fund  arising  from  said  sale  shall  be  applied  as  follows: 

(1)  To  the  payment  of  all  the  expenses  attendant  upon 
said  sale  as  such  expense  may  be  hereafter  fixed  and  allowed. 

(2)  To  the  payment  of  all  costs  in  this  suit,  other  than  that 
part   hereinbefore    adjudged    against    the    city   of    Amarillo, 

(3)  The  receiver  will  retain  in  his  hands  the  sum  of  $6,050 
and  deliver  to  the  city  of  Amarillo  upon  completion  of  the 
work  of  paving  along  the  track  of  Amarillo  Street  Railway 
Company,  on  Polk  street  in  Amarillo,  Texas,  from  the  south 
side  of  Tenth  street  to  the  south  side  of  Seventeenth  street, 
said  paving  to  be  made  uniform  with  the  pavement  already 
laid  on  either  side  of  said  track  along  said  street,  said  paving 
to  include  the  space  between  the  rails  and  for  a  distance  of 
two  feet  on  the  outside  of  each  rail :  and  upon  satisfactory 
evidence  being  made  to  the  court  of  the  completion  of  said 
pavement  said  sum  of  $6,050,  or  so  much  thereof  as  may  be 
necessary  to  reimburse  the  city  for  the  cost  of  said  pave- 
ment, shall  be  paid  over  by  said  receiver  to  said  city,  upon 
the  order  of  this  court.  (4)  The  receiver  shall  pay  the 
amount  due  upon  those  four  certain  receivers'  certificates 
hereinbefore  described  upon  the  surrender  and  cancellation 
thereof,  by  the  holder  or  holders  of  same,  which  payment 
shall  include  the  accrued  interest  on  such  certificates.  (5)  In 
case  any  other  money  shall  remain  in  his  hands  after  said 
payments  he  will  report  the  same  to  this  court,  showing  the 
amount  thereof,  when  an  order  will  be  made  as  to  the  dis- 
position thereof. 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  1053 

It  was  further  ordered,  adjudged  and  decreed  that  the 
city  of  Amarillo,  intervener,  take  nothing  by  its  claim  and 
demand  upon  the  receiver  for  the  laying  and  establishing  of 
an  eight-inch  concrete  sub-base  under  its  track,  as  prayed  for 
in  its  plea  of  intervention,  and  that  the  receiver  shall  be 
compelled  to  pay  nothing  on  account  thereof,  nor  shall  any 
part  of  the  proceeds  of  the  sale  of  said  property  be  applied 
to  the  payment  of  said  demand,  or  any  part  thereof,  for  such 
eight-inch  sub-base. 

It  was  further  ordered,  adjudged  and  decreed  that  the 
motion  of  receiver  and  of  the  plaintiff  and  defendant  to  dis- 
regard the  findings  of  the  master  as  a  whole  was  by  the 
court  overruled,  but  the  court,  after  examining  said  findings, 
rejects  and  disregards  all  that  part  of  said  findings  to  the 
effect  that  the  bonds  of  Amarillo  Street  Railway  Company 
were  never  regularly  issued  nor  sold  to  Henry  L.  Doherty  & 
Company,  but  the  court,  on  the  contrary,  finds  that  $98,500 
of  said  bonds  were  regularly  issued  by  said  Amarillo  Street 
Railway  Company  and  by  regular  and  valid  assignment  have 
become,  and  were  at  the  time  of  the  institution  of  this  suit, 
legally  owned  and  held  by  G.  Gordan  Brownell,  and  that 
plaintiff,  Emile  K.  Boisot,  as  trustee,  had  a  right  to  bring 
this  suit  and  that  said  bonds  are  outstanding  and  constitute 
a  valid  debt  against  Amarillo  Street  Railway  Company 
secured  by  a  mortgage  which  is  hereinbefore  foreclosed.  The 
findings  of  the  master  that  the  city  of  Amarillo  has  no  lien 
for  the  extra  eight-inch  sub-base  demanded  by  it  is  sustained 
as  being  correct.  The  court  finds  as  a  fact  that  the  city  of 
Amarillo,  intervener,  has  a  valid  and  subsisting  lien  upon  the 
property  and  franchises  of  Amarillo  Street  Railway  Com- 
pany for  the  cost  of  the  pavement  along  Polk  street,  from 
the  south  side  of  Tenth  street  to  the  south  side  of  Seven- 
teenth street,  between  the  rails  of  said  company  and  for  a 
space  of  two  feet  on  the  outside  of  each  rail,  which  lien  is 


1054  SUITS  IN   EQUITY. 

superior  to  the  lien  of  the  plaintiff  herein,  securing  said 
bonds.  All  other  findings  of  the  master  the  court  held  were 
immaterial,  and  therefore  did  not  pass  on  same. 

The  court  finds  as  a  fact  that  the  Amarillo  Street  Railway- 
Company  is,  and  has  been  for  a  number  of  years,  operating 
at  a  steady  and  continuous  loss. 

Geo.  Whitfield  Jack,  Judge. 

Taken  from  Faller  v.  Boisot,  249  Fed.  193,  C.  C.  A. 


No.  714. 

Decree  of  Foreclosure  of  a  Railroad  Mortgage.  (1) 

The  District  Court  of  the  United  States  within  and  for  the 
Western  Division  of  the  Western  District  of  Tennessee. 

The  Farmers'  Loan  &  Trust  Company  % 

^"^'  /Nn   491 

The  Memphis  &  Charleston  Railroad  f  ";"•  ^''^' 

Company,     The     Central     Trust/     ^^^^f 

^  /     TVT         \r    %  ^  V  Foreclosure. 

Company     of     New    York,    and  I 

Samuel  Thomas.  / 

This  cause  came  on  to  be  heard  at  this  term  upon  the 
pleadings  and  proofs  and  was  argued  by  counsel,  and  there- 
upon, upon  consideration  thereof. 

It  was  ordered,  adjudged  and  decreed  that  the  mortgage 
set  forth  in  the  bill  of  complaint  herein,  made  by  the  defend- 
ant, The  Memphis  &  Charleston  Railroad  Company,  to  the 
complainant,  The  Farmers'  Loan  &  Trust  Company,  bearing 
date  the  20th  day  of  August,  1877,  is  a  valid  and  subsist- 
ing mortgage,  and  constitutes  a  lien  prior  to  the  estates,  in- 
terests or  liens  of  any  of  the  parties  defendant  to  this  cause 
upon  the  mortgage  premises,  property  and  franchises,  to-wit: 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1055 

All  and  singular  the  main  line  of  railroad  of  the  said  Mem- 
phis &  Charleston  Railroad  Company,  extending  from  the 
point  of  commencement  thereof,  in  the  city  of  Memphis,  in 
the  state  of  Tennessee,  via  Corinth,  in  the  state  of  Mississippi, 
and  Huntsville,  in  the  state  of  Alabama,  to  the  terminus  there- 
of in  Stevenson  in  the  said  state  of  Alabama,  connecting  there 
with  the  Nashville  &  Chattanooga  Railroad,  being  a  distance 
of  two  hundred  and  seventy-two  miles,  be  the  same  more  or 
less ;  and  also  the  branch  of  said  railroad,  situate  in  the  state 
of  Tennessee,  known  as  the  Somerville  &  Moscow  branch,  ex- 
tending from  Moscow,  on  the  main  line,  to  Somerville,  a  dis- 
tance of  about  fourteen  miles,  be  the  same  more  or  less;  and 
also  the  branch  of  said  railroad,  situate  in  the  state  of  Ala- 
bama, extending  from  Tuscumbia,  on  the  main  line,  to  Flor- 
ence, a  distance  of  about  five  miles,  be  the  same  more  or  less, 
and  including  the  bridge  across  the  Tennessee  river,  near 
Florence ;  and  also  the  Washington  Street  Branch,  so-called, 
of  said  railroad,  extending  from  the  depot  of  said  main  line  in 
the  city  of  Memphis,  through  Washington  street  and  Centre 
Landing  to  the  Mississippi  river,  and  the  depot  grounds  and 
wharves  on  said  river,  and  all  the  right  and  privileges  of  said 
railroad  company  in  respect  of  the  use  of  the  streets  and 
wharves  and  levee  on  the  Mississippi  river;  and  also,  all  and 
singular  the  right  of  transportation  of  the  passenger  cars  and 
freight  cars  of  the  said  The  Memphis  &  Charles  Railroad 
Company  on  and  over  the  railroad  between  Stevenson,  in 
Alabama,  and  Chattanooga,  in  Tennessee,  which  said  Mem- 
phis &  Charleston  Railroad  Company,  at  the  date  of  the  exe- 
cution of  said  mortgage,  namely,  August  20th,  1877,  had  or 
was  entitled  to,  or  could  then,  or  since  then,  claim  under  or  in 
virtue  of  the  contract  of  the  date  of  June  twenty-third  and 
July  twenty-sixth,  eighteen  hundred  and  fifty-eight,  made  be- 
tween the  Memphis  &  Charleston  Railroad  Company  and  the 
Nashville  &  Chattanooga  Railroad  Company,  and  all  the 
rights  and  privileges  whatsoever,  for  or  in  respect  of  the  use 


1056  SUITS    IN    EQUITY. 

of,  or  transportation  over,  the  line  of  railroad  between  Ste- 
venson and  Chattanooga,  now  belonging  to  the  Nashville, 
Chattanooga  and  St.  Louis  Railway,  which  the  said  Memphis 
&  Charleston  Railroad  Company  holds  or  is  in  anywise  en- 
titled unto,  or  could,  at  the  date  of  execution  of  said  mort- 
gage, namely,  August  20th,  1877,  or  at  any  time  since  then, 
claim  either  under  or  in  virtue  of  the  before-mentioned  con- 
tract of  June  and  July,  eighteen  hundred  and  fifty-eight,  or 
otherwise  howsoever,  together  with  all  and  singular  the  road- 
way or  track  of  the  aforesaid  main  line  of  railroad  extending 
from  Memphis  to  Stevenson,  as  aforesaid,  and  of  the  said 
several  branches  respectively,  and  the  superstructure  and  rails 
laid  or  to  be  laid  thereon  respectively,  and  all  the  appurte- 
nances thereof,  and  all  the  sidings,  turnouts,  bridges,  wharves, 
viaducts,  culverts,  walls,  fences,  ways  and  rights  of  way,  de- 
pots, station-houses,  engine-houses,  car-houses,  freight-houses, 
wood-houses,  depot  grounds  and  lands  procured,  provided,  or 
intended  for  use  for  that  purpose;  building  and  repair  shops, 
machine  shops,  and  lands  used  or  procured,  or  intended  for 
sites  thereof,  and  other  buildings,  structures,  lands  and  im- 
provements whatsoever,  leases  and  leasehold  interests,  con- 
tracts, easements  and  privileges  belonging  or  appertaining  to, 
or  used  or  procured,  or  designed  to  be  used  for  the  purpose 
of  or  in  connection  with  the  said  main  line  of  railroad  and 
branches  respectively,  or  the  maintenance  or  operation  there- 
of, or  of  any  part  thereof,  at  the  date  of  the  execution  of  said 
mortgage,  namely  on  the  20th  day  of  August,  1877,  or  at  any 
time  thereafter;  and  also  all  the  locomotives,  tenders,  passen- 
ger cars,  baggage  cars,  freight  cars  and  other  cars,  and  all 
other  rolling-stock  or  equipment,  and  all  machinery,  tools  and 
implements ;  rails,  chairs  and  spikes  and  other  materials  what- 
soever, owned  or  possessed  by  the  said  Memphis  &  Charles- 
ton Railroad  Company  at  the  date  of  the  execution  of  said 
mortgage,  namely,  on  the  20th  day  of  August,  1877,.  or  at 
any  time  thereafter  for  the  uses  or  purposes  of,  or  designed  for 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  1057 

use  in  connection  with,  or  for  the  operation,  maintenance  or 
reparation  of  the  said  main  line  of  railroad  and  branches  re- 
spectively, or  the  equipment  or  appurtenances  thereof,  and 
all  of  the  engines,  cars  and  rolling-stock  or  equipment  of  any- 
kind,  machinery,  tools,  implements,  rails  and  other  materials 
which  now  belong  or  appertain  to,  or  are  in  use,  or  on  hand, 
designed  for  use  for  the  purpose  of  said  main  line  of  railroad 
and  branches  respectively,  or  any  part  thereof,  or  have  belong- 
ed or  appertained  to,  or  been  in  use,  or  on  hand,  designed  for 
use  for  the  purposes  of  said  main  line  of  railroad  and  branches 
respectively,  or  any  part  thereof,  at  any  time  or  times  after  the 
date  of  the  execution  of  said  mortgage,  namely,  August  20th, 
1877,  and  all  the  lands  and  real  estate  whatsoever  of  any 
and  every  kind  whatsoever,  and  all  improvements  thereon  sit- 
uate in  the  states  of  Tennessee,  Alabama  and  Mississippi  re- 
spectively, which  were  owned  or  possessed  by,  or  which  be- 
longed to  the  said  Memphis  &  Charleston  Railroad  Com- 
pany at  the  date  of  the  execution  of  said  mortgage,  namely, 
August  20th,  1877,  and  also  all  and  singular  the  rights,  priv- 
ileges and  franchises  whatsoever,  which  the  said  Memphis  & 
Charleston  Railroad  Company  has  acquired  or  become  pos- 
sessed of  or  entitled  unto,  since  the  said  date  of  the  execution 
of  said  mortgage,  for  or  in  respect  of  or  for  the  uses  or  pur- 
poses of  the  said  main  line  of  railroad  and  branches  respective- 
ly, or  the  operation  or  maintenance  thereof,  and  also  all  the 
tolls  and  income  of  the  said  main  line  of  railroad  and  branches 
respectively,  together  with  all  and  singular  the  tenements,  he- 
reditaments and  appurtenances  unto  the  premises  aforesaid,  or 
any  of  them,  or  any  part  thereof  belonging  or  in  any  wise 
appertaining;  and  the  reversion  or  reversions,  remainder  and 
remainders,  rents,  issues  and  profits  thereof;  and  all  the  es- 
tate, right,  title,  interest,  property,  possession,  claim  and  de- 
mand whatsoever,  as  well  at  law  as  in  equity,  of  the  said 
Memphis  &  Charleston  Railroad  Company,  of  in  and  to  the 


1058  SUITS    IN    EQUITY. 

same,  and  every  part  and  parcel  thereof,  with  the  appurte- 
nances. 

It  was  also  ordered,  adjudged  and  decreed,  that  the  lien  of 
the  said  mortgage  is  prior  to  all  other  liens  of  whatsoever  na- 
ture, except  only  the  following  liens,  to  which  it  was  ordered, 
adjudged  a«d  decreed  to  be  subject,  that  is  to  say : 

First.  A  certain  statutory  lien  in  the  nature  of  a  mort- 
gage, originally  created  and  existing  in  favor  of  the  state  of 
Tennessee,  and  mentioned  and  described  in  the  said  mortgage 
of  August  20th,  1877. 

Second.  The  lien  of  a  certain  mortgage  or  deed  of  trust, 
dated  May  ist,  1854,  made  by  the  said  The  Memphis  & 
Charleston  Railroad  Company  to  James  Punnett,  G.  B.  La- 
mar and  Thomas  Fearn,  as  trustees,  mentioned  and  described 
in  the  said  mortgage  of  August  20th,  1877,  and  known  as 
the  first  mortgage  and  extended  by  an  indenture  dated  Sep- 
tember 7th,  1880,  to  which  indenture  the  complainant.  The 
Farmers'  Loan  &  Trust  Company,  as  trustee  under  the  said 
mortgage  of  August  20th,  1877,  was  a  party,  and  duly  exe- 
cuted the  same  in  accordance  with  certain  provisions  to  that 
end  in  the  said  mortgage  of  August  20th,  1877,  contained. 

Third.  The  lien  of  a  certain  other  mortgage  or  deed  of 
trust,  dated  January  ist,  1867,  m»de  by  the  said  The  Memphis 
&  Charleston  Railroad  Company  to  Gustavus  L.  Masten, 
George  W.  Neal  and  William  C.  Rehren,  as  trustees,  mention- 
ed and  described  in  the  said  mortgage  of  August  20th,  1877, 
and  known  as  the  second  mortgage,  and  extended  by  an  in- 
denture dated  September  7th,  1880,  to  which  indenture  the 
complainant,  The  Farmers'  Loan  &  Trust  Company,  as  trust- 
ee under  the  said  mortgage  of  August  20th,  1877,  was  a 
party,  and  duly  executed  the  same,  in  accordance  with  cer- 
tain provisions  to  that  end  in  the  said  martgage  of  August 
20th,  1877,  contained. 

It  was  also  ordered,  adjudged  and  decreed,  that  default 
has  been  made  in  the  payment  of  interest  due  upon  said  mort- 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC.  1059 

gage  of  August  20th,  1877,  entitling  the  complainant  to  a  sale 
of  said  mortgaged  property  and  premises,  unless  the  defend- 
ant, the  Memphis  &  Charleston  Railroad  Company,  shall  pay 
the  amount  of  the  entire  bonded  indebtedness  secured  by  said 
mortgage,  at  a  short  day,  to  be  fixed  by  the  court ;  that  there 
are  secured  by  said  mortgage  lien  the  following  amounts  of 
bonds  and  coupons,  with  interest  thereon,  of  the  said  The 
Memphis  &  Charleston  Railroad  Company,  which  are  out- 
standing and  past  due,  viz. : 

First.  The  amount  of  $79,240,  for  coupons  due  January 
first,  1895,  with  'interest  on  the  amount  of  said  coupons  at 
the  rate  of  six  per  centum  per  annum  from  that  date;  $10,- 
-235.16,  making  $89,475.16. 

Second.  The  amount  of  $79,240  for  coupons  due  July  first, 

1895,  with  interest  at  a  like  rate  from  that  date;  $7,857.97, 
making  $87,097.97. 

Third.  The  amount  of  "$79,240,  for  coupons  due  January 
first,  1896,  with  interest  at  a  like  rate  from  that  date;  $5,- 
480.76,  making  $84,720.76. 

Fourth.  The  amount  of  $79,240  for  coupons  due  July  first, 

1896,  with  interest  at  a  like  rate  from  that  date;  $3,103.57, 
making  $82,343.57. 

Fifth.  The  amount  of  $79,240  for  coupons  due  January 
first,  1897,  with  interest  at  a  like  rate  from  that  date;  $726.37, 
making  $79,966.37. 

Sixth.  The  amount  of  $2,264,000  for  the  principal  of  said 
bonds,  with  interest  at  the  rate  of  seven  per  centum  per  an- 
num from  January  first,  1897,  $24,214.22;  so  that  the  en- 
tire sum  due  for  principal  and  interest,  and  interest  on  the  un- 
paid coupons  up  to  the  day  of  the  date  of  this  decree,  is  the 
sum  of  $2,711,816.05  and, 

It  was  further  ordered,  adjudged  and  decreed  that  the  mort 
gaged  property  and  premises  above  described  are  so  situated 
that  they  cannot  be  sold  except  as  an  entirety,  due  regard  be- 
ing had  to  the  best  interests  of  those  interested  in  the  same; 


1060  SUITS   IN    EQUITY. 

and  further,  that  the  said  defendant,  The  Memphis  &  Charles- 
ton Railroad  Company,  is  utterly  insolvent  and  unable  to  pay 
its  debts  and  habiHties;  and, 

It  is  further  ordered,  adjudged  and  decreed,  that  unless 
the  parties  defendant,  or  some  of  them,  shall,  on  or  before 
the  31st  day  of  March,  1897,  pay  the  complainant  the  entire 
sum  hereinbefore  found  to  be  due  for  principal  and  interest, 
including  interest  on  unpaid  coupons  up  to  the  date  of  this 
decree,  as  hereinbefore  fixed  and  determined,  with  interest 
thereon  from  the  date  hereof,  then  the  said  mortgaged  prem- 
ises and  property  shall  be  sold  as  hereinafter  directed,  and 
all  the  right  and  equity  of  redemption  of  the  defendants,  and 
each  and  all  of  them,  of,  in  and  to  the  said  mortgaged  prem- 
ises, property,  rights,  assets  and  franchises,  and  every  part 
and  parcel  thereof,  shall  be  forever  barred  and  foreclosed. 

In  case  the  said  sum  shall  be  paid  as  herein  decreed,  then 
any  party  hereto  may  apply  to  this  court  for  such  further  re- 
lief and  for  such  further  directions  as  may  be  just  and  equit- 
able. 

It  was  further  ordered,  adjudged  and  decreed,  that  if  de- 
fault be  made  in  making  said  payment  on  or  before  the  said 
31st  of  March,  1897,  then  all  the  said  mortgaged  premises 
and  property,  real,  personal  and  mixed,  rights  and  franchises, 
wherever  situated,  shall  be  sold  as  an  entirety,  and  without 
an  appraisement  or  right  of  redemption,  subject,  however,  to 
the  said  statutory  lien  and  to  the  said  first  mortgage  or  deed 
of  trust,  dated  May  ist,  1854,  executed  by  said  The  Memphis 
&  Charleston  Railroad  Company  to  James  Punnett,  G.  B. 
Lamar  and  Thomas  Fearn,  as  trustees,  and  said  second  mort- 
gage or  deed  of  trust,  dated  January  ist,  1867,  made  by  said 
The  Memphis  &  Charleston  Railroad  Company  to  Gustavus 
L.  Maston,  George  W.  Neal  and  William  C.  Rehren,  as  trust- 
ees, said  first  mortgage  and  second  mortgage  having  been 
extended  by  certain  indentures,  both  dated  September  7th, 
1880,   and  hereinbefore  mentioned.     The  said  sale  shall  be 


NOTICES.    MOTIONS,   ORDERS,   DECREES,   ETC.  1061 

made  at  public  auction  to  the  highest  bidder  therefor,  at 
twelve  o'clock  noon,  at  the  railroad  station  upon  said  railroad 
of  the  Memphis  &  Charleston  Railroad  Company,  in  the  city 
of  Memphis,  in  the  state  of  Tennessee,  on  a  day  to  be  named 
by  the  Special  Master  herein  appointed,  in  his  notice  of  sale; 
that  before  making  said  sale,  the  Special.  Master  shall  pub- 
lish a  notice  thereof  once  a  week  for  at  least  four  weeks  prior 
to  such  sale,  in  one  newspaper,  printed,  regularly  issued  and 
having  a  general  circulation  in  the  county  of  Shelby  and  state 
of  Tennessee ;  in  one  newspaper,  printed,  regularly  issued  and 
having  a  general  circulation  in  the  county  of  Madison  and 
state  of  Alabama ;  and  in  one  newspaper,  printed,  regularly 
issued  and  having  a  general  circulation  in  the  county  of  Mon- 
roe and  state  of  Mississippi,  and  in  the  New  York  Times. 

And  further,  that  the  Special  Master  making  such  sale  may, 
either  personally  or  by  some  person  to  be  designated  by  him 
to  act  in  his  name  and  by  his  authority,  adjourn  the  sale  from 
time  to  time  without  further  advertisement,  but  only  on  the 
request  of  the  complainant  or  its  solicitors  or  by  order  of  the 
court  or  a  judge  thereof. 

It  was  further  ordered,  adjudged  and  decreed  that  the 
Special  Master  shall  receive  no  bid  from  any  one  offering 
to  bid  for  the  premises  above  described,  who  shall  not  first 
deposit  with  him  as  a  pledge  that  he  will  make  good  his  bid 
in  case  of  its  acceptance,  the  sum  of  $50,000  in  money,  or 
by  certified  check  upon  any  National  Bank  or  Trust  Company 
in  the  city  of  New  York,  or  $100,000.00  par  value  of  bonds 
secured  by  the  said   consolidated   mortgage  of  August    20, 

1877- 

Upon  the  acceptance  of  any  bid  for  such  property,  the  pur- 
chaser shall  forthwith  deposit  with  the  said  Special  Master 
the  sum  of  $50,000.00  in  cash,  or  by  certified  check  upon  any 
National  Bank  or  Trust  Company  in  the  city  of  New  York, 
but  any  cash  which  may  have  been  previously  deposited  by 
the  successful  bidder  as  a  pledge  that  he  would  make  good 


1062  SUITS    IN    EQUITY. 

his  bid,  shall  be  received  on  account  of  the  amount  so  re- 
quired on  the  acceptance  of  his  bid. 

In  case  any  bidder  shall  fail  to  make  the  deposit  herein 
required  upon  the  acceptance  of  his  bid,  the  Special  Master 
shall  then  and  there  again  offer  the  property  for  sale,  without 
further  notice  or  advertisement. 

The  Special  Master  shall  accept  no  bid  for  the  mortgaged 
property  unless  the  same  shall  be  at  least  equal  to  the  sum 
of  $2,500,000.00.  In  case  such  amount  above  required  shall 
not  be  bid  therefor,  the  Special  Master  shall  adjourn  the  sale, 
and  shall  apply  to  the  court  for  further  instructions. 

The  deposit  received  from  any  unsuccessful  bidder  shall 
be  returned  to  him  when  the  property  shall  be  struck  down. 

The  deposit  received  from  the  successful  bidder  shall  be 
held  and  applied  on  account  of  the  purchase  price  of  the  prop- 
erty for  which  such  bid  was  made. 

In  case  any  bidder  or  purchaser  shall  fail  to  make  good  his 
bid  upon  its  acceptance  by  the  Special  Master,  or  after  such 
acceptance  shall  fail  to  comply  with  any  order  of  the  court 
relating  to  payment  thereof,  or  the  consummation  of  the  pur- 
chase, then  the  sums  in  cash  or  bonds  deposited  by  such  pur- 
chaser or  purchasers  as  hereinbefore  provided  shall  be  for- 
feited as  a  penalty  for  such  failure,  and  shall  be  applied 
towards  the  expenses  of  a  resale  and  towards  making  good 
any  deficiency  or  loss  in  case  the  property  shall  be  sold  at  a 
price  less  than  that  bid  at  the  prior  sale.  If  the  court  shall 
not  confirm  the  sale  for  which  the  deposit  shall  have  been 
made,  such  deposit  shall  be  returned  to  the  bidder. 

The  complainant.  The  Farmers'  Loan  &  Trust  Company,  as 
trustee,  or  any  holder  or  holders  of  any  of  said  bonds,  or  any 
party  to  this  suit,  may  bid  and  purchase  at  any  such  sale. 

Upon  confirmation  of  the  sale  by  the  court,  the  purchaser 
shall  make  such  further  payment  or  payment?  in  cash  on  ac- 
count of  his  bid  as  the  court  from  time  to  time  may  direct. 

The  purchaser  may  satisfy  and  make  good  any  part  of  his 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1063 

bid  not  required  to  be  paid  in  cash,  by  turning  in  to  be  can- 
celed or  credited,  as  hereinafter  provided,  any  bonds  or  cou- 
pons payable  out  of  the  proceeds  upon  distribution  thereof; 
and  such  purchaser  shall  be  credited  therefor  on  account  of 
his  bid  with  such  sums  as  would  be  payable  on  such  bonds 
and  coupons  out  of  the  purchase  price  if  the  whole  amount 
thereof  had  been  paid  in  cash. 

The  court  reserves  the  right  to  resell  the  property  upon 
such  notice  as  the  court  shall  direct,  in  case  the  purchaser 
thereof  shall  fail  or  omit  to  make  any  payment  on  account 
of  any  unpaid  balance  of  the  purchase  price  within  thirty 
days  after  the  entry  of  an  order  requiring  such  payment. 

All  sums  of  money  received  by  the  Special  Master  shall 
forthwith  be  deposited  with  the  designated  depository  of  this 
court  at  Memphis,  Tennessee,  and  all  bonds  received  by  the 
Special  Master,  with  The  Farmers'  Loan  &  Trust  Company; 
in  each  case  subject  to  the  order  of  this  court;  and  the  cer- 
tificate of  said  Trust  Company  or  of  the  Guaranty  Trust 
Company  of  the  city  of  New  York,  that  it  holds  bonds  as 
therein  described  subject  to  the  order  of  the  party  named,  and 
transferred  to  the  order  of  said  Special  Master,  shall  by  him 
be  received  and  accepted  in  lieu  of  such  bonds,  as  a  deposit 
at  the  time  of  sale  and  on  account  of  the  payment  of  the  pur- 
chase price  bid,  with  like  force  and  effect  as  though  the  bonds 
therein  named  had  been  delivered  to  such  Special  Master. 

The  purchaser  shall,  as  part  consideration,  and  in  addition 
to  the  sum  bid,  for  such  property,  take  the  same  and  receive 
the  deed  therefor  upon  the  elxpress  condition  that  to  the  ex- 
tent that  the  assets  or  the  proceeds  of  assets  in  the  receivers' 
hands  shall  be  insufficient,  such  purchaser,  his  successors  or 
assigns,  shall  pay,  satisfy  and  discharge  (a)  any  unpaid  com- 
pensation which  shall  be  allowed  by  the  court  to  the  receivers ; 
(b)  any  unpaid  indebtedness  and  obligations  or  liabilities 
which  shall  have  been  duly  contracted  or  incurred  by  the  re- 
ceivers before  delivery  of  possession  of  the  property  sold ;  and 


1064  SUITS    IN    EQUITY. 

(c)  also  any  unpaid  indebtedness  or  liability  contracted  or 
incurred  by  said  defendant  Railroad  Company  in  the  opera- 
tion of  its  railroad,  payment  whereof  was  provided  for  in  the 
order  appointing  receivers  herein,  and  which  is  prior  in  lien 
or  superior  in  equity  to  said  consolidated  mortgage  of  Au- 
gust 20,  1877,  except  such  as  shall  be  paid  and  satisfied  out 
of  the  income  of  the  property  in  the  hands  of  the  receivers, 
or  out  of  such  other  assets  upon  the  court  adjudging  the  same 
to  be  prior  in  lien  or  superior  in  equity  to  said  mortgage 
and  directing  payment  thereof ;  provided,  however,  that  no  ob- 
ligation is  hereby  imposed  upon  or  is  required  to  be  assumed 
by  the  purchaser  to  pay  or  discharge  either  the  statutory  lien 
or  the  first  mortgage  bonds,  or  the  second  mortgage  bonds  of 
the  defendant,  hereinbefore  described,  and  subject  to  which 
such  property  is  to  be  sold. 

All  payments  for  any  such  purpose  made  by  the  purchaser 
in  advance  of  the  final  accounting  and  discharge  of  the  re- 
ceivers, shall  be  treated  as  advances  and  subject  to  final  ad- 
justment upon  such  accounting. 

In  the  event  that  the  purchaser  of  such  property,  after  de- 
mand made,  shall  refuse  to  pay  any  of  the  before  mentioned 
indebtedness  or  liabilities,  the  person  holding  the  claim  there- 
for, upon  fifteen  days'  notice  to  such  purchaser  and  his  suc- 
cessors and  assigns  may  file  his  petition  in  this  court  to  have 
such  claim  enforced  against  said  property  in  accordance  with 
the  usual  practice  of  this  court  in  relation  to  claims  of  similar 
character,  and  such  purchaser  and  his  successors  or  assigns 
shall  have  the  right  to  appear  •  and  to  make  defense  to  any 
claim,  debt  or  demand  so  sought  to  be  enforced,  and  any 
party  shall  have  the  right  to  appeal  from  any  judgment,  de- 
cree or  order  made  thereon. 

For  the  purpose  of  enforcing  the  foregoing  provisions  of 
this  decree,  jurisdiction  of  this  cause  is  retained  by  this  court, 
and  the  court  reserves  the  right  to  retake  and  resell  the  prop- 
erty in  case  such  purchaser  or  his  successors  or  assigns  shall 


NOTICES,    MOTIONS,   ORDERS,    DECREES,    ETC.  1065 

fail  to  comply  with  any  order  of  the  court  in  respect  to  the 
payment  of  such  prior  indebtedness  or  liabilities,  within  thirty 
days  after  service  of  a  copy  of  such  order. 

The  Special  Master,  when  ordered  by  this  court,  shall  pub- 
lish, at  least  once  a  week  for  the  period  of  six  weeks,  in  one 
or  more  newspapers  published  in  the  city  of  Memphis,  Ten- 
nessee, a  notice  requiring-  holders  of  any  claims  to  present  the 
same  for  allowance;  and  any  such  claims  which  shall  not 
le  so  presented  or  filed  within  the  period  of  six  months  after 
the  first  publication  of  such  notice,  shall  not  be  enforceable 
against  said  receivers  or  against  the  property  sold,  or  against 
the  purchaser  or  his  successors  and  assigns. 

Any  such  purchaser  or  purchasers,  and  his  or  their  success- 
ors and  assigns,  shall  have  the  right  to  enter  his  or  their  ap- 
pearance in  this  court;  and  he  or  they  or  any  of  the  parties 
to  this  suit  shall  have  the  right  to.  contest  any  claim,  demand 
or  allowance  existing  at  the  time  of  the  sale  and  then  unde- 
termined, and  any  claim  or  demand  which  thereafter  may 
arise  or  be  presented,  which  would  be  payable  by  such  pur- 
chaser or  his  successors  or  assigns  or  which  would  be  charge- 
able against  the  property  purchased,  in  addition  to  the  amount 
bid  at  the  sale;  and  he  or  they  may  appeal  from  any  decision 
relating  to  any  such  claim,  demand,  or  allowance. 

The  purchaser  of  such  property  shall  also  take  the  same 
subject  to  the  performance  by  him  or  his  successors  or  assigns, 
of  all  pending  contracts  in  respect  thereof,  theretofore  law- 
fully made  by  the  receivers. 

The  purchaser  at  any  such  sale,  and  his  successors  and  as- 
signs, shall  have  the  right,  within  ninety  days  after  the  com- 
pletion of  the  sale  and  delivery  of  the  deed  as  hereinafter  pro- 
vided to  elect  whether  or  not  to  assume  or  adopt  any  lease  or 
contract  sold  with  the  railroad  and  other  property  and  fran- 
chises; and  the  purchaser,  his  successors  or  assigns,  shall  not 
be  held  to  have  assumed  any  of  said  leases  or  contracts  which 
he  or  thev  shall  so  elect  not  to  assume. 


1066  SUITS    IN    EQUITY. 

It  was  further  ordered,  that  L.  B,  McFarland  he  and  he 
hereby  is  designated  and  appointed  a  Special  Master  to  make 
the  sale  hereby  ordered  and  decreed,  and  to  execute  and  de- 
liver a  deed  of  conveyance  of  the  property  so  to  be  sold 
to  the  purchaser  or  purchasers  thereof,  on  the  order  of  the 
court,  or  of  a  judge  thereof,  confirming  such  sale;  the  court, 
however,  reserving  the  right  to  appoint,  in  term  time  or  at 
chambers,  another  person  such  Special  Master,  with  like  pow- 
ers, in  case  of  the  death  or  disability  to  act  of  the  Special 
Master  hereby  designated  or  in  case  of  his  resignation  or  fail- 
ure to  act,  or  removal  by  the  court. 

It  was  further  ordered  and  decreed,  that  within  thirty  days 
from  the  confirmation  of  said  sale  or  sales,  or  such  further 
time  as  the  court  may  allow  on  application  of  the  purchaser 
for  good  cause  shown,  the  purchaser  or  purchasers  of  said 
property  shall  complete  payment  of  the  entire  amount  bid  to 
the  said  Special  Master;  and  that  on  such  payment  the  said 
purchaser  or  purchasers  shall  be  entitled  to  receive  a  deed  of 
conveyance  thereof  from  the  Special  Master  and  as  herein 
provided,  from  the  Memphis  &  Charleston  Railroad  Company, 
and  The  Farmers'  Loan  &  Trust  Company  as  trustee  under 
the  said  mortgage  of  August  20th,  1877,  and  to  receive  pos- 
session of  the  property  so  purchased  from  the  parties  holding 
possession  of  the  same,  and  upon  the  execution  and  delivery 
of  such  deed,  the  receivers  shall  deliver  all  the  premises  sold 
which  may  be  in  their  possession  over  to  the  purchaser  or 
purchasers,  his  or  their  successors  or  assigns,  including  all 
income,  proceeds  of  income,  bills  and  accounts  receivable,  cash 
and  other  property  received  by  the  receivers  in  the  manage- 
ment or  operation  of  the  mortgaged  premises  embraced  in 
such  conveyance  or  pertaining  thereto;  subject,  nevertheless, 
to  the  condition  that  the  court  may  retake  and  resell  the  prop- 
erty in  case  the  purchaser  or  purchasers  thereof,  his  or  their 
successors  or  assigns  respectively,  shall  fail  to  pay  any  bal- 
ance of  the  purchase  price  remaining  unpaid  by  him  or  them  or 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1067 

to  comply  with  any  order  of  this  court  with  respect  to  the 
payment  of  any  prior  indebtedness,  obligations  and  liabilities 
as  hereinbefore  provided,  within  thirty  days  after  the  service 
of  copy  of  such  order. 

It  was  further  ordered  and  decreed,  that  the  fund  to  aris6 
from  said  sale  shall  be  applied  as  follows: 

First.  To  the  payment  of  all  proper  expenses  attendant 
upon  said  sale,  including-  the  expense,  outlays  and  compensa- 
tion of  the  Special  Master  to  make  said  sale,  as  such  expense, 
outlays  and  compensation  may  be  hereafter  fixed  and  allowed. 

Second.  To  the  payment  of  the  costs  of  this  suit  and  the 
compensation  of  the  complainant  herein  for  its  services, 
charges  and  expense  in  the  execution  of  its  trust  under  said 
mortgage  so  made  to  it  as  aforesaid,  including  its  own  com- 
pensation and  commissions  and  its  disbursements  for  solici- 
tors and  counsel  fees  in  the  execution  of  said  trust,  as  such 
charges,  expenses  and  compensation  may  be  hereafter  fixed 
and  allowed  by  this  court. 

Third.  To  the  payment  of  the  bonds  and  coupons  of  the 
defendant.  The  Memphis  &  Charleston  Railroad  Company, 
secured  by  the  mortgage  foreclosed  hereby,  with  interest 
thereon  to  the  amount  hereinbefore  specified,  or  if  the  fund 
be  not  sufficient  to  pay  the  same,  then  to  the  payment  of  same 
pro  rata;  that  each  of  the  said  bonds  presented  to  the  Special 
Master  shall,  if  the  holder  thereof  shall  also  request,  be  stamp- 
ed or  endorsed  in  some  way  by  said  Special  Master,  so  as  to 
show  the  amount  that  has  been  paid  on  account  of  the  same, 
and  on  account  of  the  coupon  interest  due  thereon,  and  be 
returned  so  stamped  or  endorsed  to  the  holder  thereof;  that  in 
case  of  payment  in  full  of  said  bonds  and  coupons,  with  inter- 
est thereon,  the  same  shall  be  delivered  with  payment  in  full 
stamped  thereon  by  the  Special  Master,  to  the  purchaser  or 
purchasers  at  the  sale,  to  be  held  by  said  purchasers  as  a  mu- 
niment of  title ;  and 

Fourth.     If,   after  making  all   the  above  payments,   there 


1068 


SUITS    IN    EQUITY. 


shall  be  any  surplus,  the  same  shall  be  paid  according  to  the 
further  order  of  court  in  that  regard. 

And  further,  that  in  case  there  shall  be  any  deficiency  in 
the  amount  required  to  be  paid  in  full  of  the  several  amounts 
directed  and  allowed  to  be  paid,  then  the  said  Special  Master 
shall  report  to  the  court  the  amount  of  the  deficiency,  and  the 
plaintiff  as  trustee  shall  have  judgment  against  the  said  de- 
fendant mortgagor  corporation  for  the  amount  due,  and  shall 
have  execution  therefor,  pursuant  to  the  rules  and  practice  of 
this  court;  and 

It  was  further  ordered  and  decreed  that  the  defendant.  The 
Memphis  &  Charleston  Railroad  Company,  and  the  complain- 
ant, The  Farmers'  Loan  &  Trust  Company,  be,  and  they  are 
hereby  authorized  and  directed  to  execute  and  deliver,  under 
the  direction  of  the  Special  Master  conveyances  executed  by 
them,  respectively,  by  way  of  confirmation  and  further  assur- 
ances of  title  to  the  said  purchaser  or  purchasers,  his,  its  or 
their  assigns,  of  all  and  singular  the  mortgaged  property  and 
premises,  and  every  part  and  parcel  thereof,  of  every  kind  and 
description,  and  wherever  situated,  hereby  directed  to  be  sold 
by  the  Special  Master;  and  that  the  form  of  said  conveyance 
and  mode  of  execution  thereof  shall  be  settled  and  approved 
by  the  Special  Master,  or  by  the  court  or  judge  thereof,  if  any 
question  should  arise  as  to  the  form  and  sufficiency  thereof, 
and  that  such  conveyance  shall  be  delivered  to  said  purchaser 
or  purchasers,  his  its  or  their  assigns,  contemporaneously  with 
the  deed  or  deeds  of  the  Special  Master ;  and 

It  was  further  ordered  and  decreed  that  if  none  of  the  said 
parties  defendant  shall  pay,  or  cause  to  be  paid,  to  the  Farm- 
ers' Loan  &  Trust  Company  on  or  before  the  31st  day  of 
March,  1897,  the  amounts  hereinbefore  found  to  be  due  and 
to  be  paid  to  the  said  The  Farmers'  Loan  &  Trust  Company 
on  or  before  said  31st  day  of  March,  1897,  together  with  the 
costs,  expenses  and  allowances  in  this  suit,  then,  and  in  that 
event,  the  said  defendant,  The  Central  Trust  Company  of  New 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1069 

York,  as  trustee,  under  the  mortg»age  of  said  railroad  company, 
bearing  date  the  first  day  of  January,  1884,  and  known  as  the 
general  mortgage  of  said  railroad  company,  or  the  holders  of 
a  majority  of  the  bonds  secured  by  the  said  general  mortgage, 
may,  at  any  time  prior  to  the  sale  of  the  said  property  and 
franchises  of  said  Memphis  &  Charleston  Railroad  Company, 
as  hereinbefore  provided,  pay  to  the  said  The  Farmers'  Loan 
&  Trust  Company  the  amounts  herein  found  to  be  due  in  re- 
spect to  the  said  bonds  and  coupons  secured  by  the  said  mort- 
gage, dated  August  20th,  1877,  hereby  foreclosed,  together 
with  an  amount  sufficient  to  cover  all  the  costs,  expenses  and 
allowances  of  this  suit  and  thereupon  the  said  The  Central 
Trust  Company,  or  the  holders  of  a  majority  of  the  said 
bonds  secured  by  the  said  general  mortgage,  so  redeeming 
shall  become  subrogated  to  all  the  rights  of  the  holders  of  the 
said  bonds  and  coupons  secured  by  the  said  mortgage,  dated 
August  20,  1877,  hereby  foreclosed,  under  this  decree,  in  re- 
spect to  the  said  last  mentioned  bonds  and  coupons  and  the 
mortgage  securing  the  same.  The  said  The  Farmers'  Loan 
&  Trust  Company  shall  pay  over  to  the  respective  holders  of 
the  said  bonds  and  coupons  secured  by  the  mortgage  fore- 
closed hereby  the  amounts  due  upon  the  said  bonds  and  cou- 
pons only  upon  receipt  of  the  said  bonds  and  coupons,  which 
shall  thereupon  be  transferred  and  delivered  by  the  said  The 
Farmers'  Loan  &  Trust  Company  to  the  party  or  parties  mak- 
ing such  payment,  and  upon  such  payment  being  made  to  the 
said  The  Farmers'  Loan  &  Trust  Company,  the  sale  of  the 
said  property  and  franchises  of  the  said  Memphis  &  Charles- 
ton Railroad  Company  shall  be  stayed,  and  the  said  stay  shall 
then  continue,  and  said  sale  shall  not  then  be  made,  as  herein 
provided,  until  the  further  order  of  this  court,  upon  notice 
to  the  said  The  Farmers'  Loan  &  Trust  Company,  and  said 
Central  Trust  Company  of  New  York. 

It  was  further  ordered  that  any  party  to  this  proceeding 


1070 


SUITS    IN    EQUITY. 


may  apply  to  the  court  for  further  orders  and  directions  at 
the  foot  of  the  decree. 

Done  this  February  25th,    1897. 

(i)  The  foregoing  decree  is  copied  from  the  record  in  the  case  of  The 
Farmers'  Loan  &  Trust  Co.  vs.  Memphis  &  Charleston  R.  Co.,  in  the  Cir- 
cuit Court  of  the  United  States  for  the  western  district  of  Tennessee. 


No.  715. 

Order  of  Delivery  of  Property  to  Reorganized  R.  R.  Co. 

{^Caption.'] 

Now,  this  day  comes  Toledo,  St.  Louis  &  Western  Railroad 
Company,  by  Butler,  Notman,  Joline  &  Mynderse,  its  solici- 
tors, and  presents  to  the  court  its  petition  for  an  order  direct- 
ing Samuel  Hunt,  the  receiver  heretofore  appointed  of  the 
property  of  the  Toledo,  St.  Louis  &  Kansas  City  Railroad 
Company,  to  surrender  and  deliver  to  the  petitioner,  or  its 
duly  authorized  representatives  on  August  ist,  1900,  all  and 
singular  the  line  of  railroad,  rights,  privileges,  franchises  and 
other  property  now  in  the  possession  of  said  receiver,  former- 
ly owned  by  the  Toledo,  St.  Louis  &  Kansas  City  Railroad 
Company,  and  purchased  and  acquired  by  said  petitioner,  To- 
ledo, St.  Louis  &  Western  Railroad  Company. 

And  also  come  Samuel  Hunt,  as  receiver  of  the  property 
of  the  respondent,  Toledo,  St.  Louis  &  Kansas  City  Railroad 
Company,  by  Clarence  Brown,  Esq.,  his  solicitor,  Continental 
Trust  Company  of  the  city  of  New  York,  by  Cary  &  Whit- 
ridge,  its  solicitors,  James  N.  Wallace,  by  Arthur  H.  Van 
Brunt,  his  solicitor,  and  Toledo  &  East  St.  Louis  Railroad 
Company  by  Adrian  H.  Larkin,  its  solicitors,  and  all  and 
singular  the  matters  contained  in  said  petition  being  consid- 
ered and  by  the  court  fully  understood,  it  is 

Ordered  and  decreed  that  said  petition  be,  and  the  same 
hereby  is,  granted,  and  it  is  further 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1071 

Ordered  and  decreed  that  Samuei  Hunt,  receiver  of  the 
property  of  the  Toledo,  St.  Louis  &  Kansas  City  Railroad 
Company,  upon  the  filing  with  him  of  a  certified  copy  of  this 
order  and  the  exhibition  to  him  of  the  following  deeds  (or 
certified  copies  thereof),  viz.: 

First.  Frank  Shaffer  and  Merrill  Moores,  as  Special  Mas- 
ters  to   Toledo,    St.    Louis   &   Western    Railroad    Company. 

Second.  Frank  H.  Shaffer  and  Merrill  Moores  as  Spe- 
cial Masters  to  Toledo  &  East  St.  Louis  Railroad  Company; 
and 

Third.  Toledo  &  East  St.  Louis  Railroad  Company  to 
Toledo,  St.  Louis  &  Western  Railroad  Company,  each  of 
said  deeds  to  be  substantially  the  same  in  form  as  the  form 
of  deed  annexed  to  the  said  petition  of  Toledo,  St.  Louis  & 
Western  Railroad  Company,  and  on  the  ist  day  of  August, 
1900,  surrender  and  deliver  to  the  Toledo,  St.  Louis  &  West- 
ern Railroad  Company,  or  its  duly  authorized  representative, 
all  and  singular  the  line  of  railroad,  property,  rights,  privi- 
leges and  franchises  formerly  belonging  to  the  Toledo,  St. 
Louis  and  Kansas  City  Railroad  Company,  and  purchased, 
acquired  and  now  owned  by  said  Toledo,  St.  Louis  &  West- 
ern Railroad  Company. 

It  is  further  ordered  and  decreed,  that  the  transactions  and 
accounts  of  the  said  receivership  be  closed  as  of  midnight, 
July  31st,  1900,  and  that  the  receiver  file  his  accounts  and  re- 
ports of  his  transactions  with  all  convenient  speed  thereafter. 

It  is  further  ordered  and  decreed,  that  the  said  petitioner, 
the  Toledo,  St.  Louis  &  Western  Railroad  Company,  be,  and 
it  hereby  is,  made  a  party  to  this  cause,  as  the  successor  in 
right  and  obligation  to  Morton  S.  Paton  and  Richard  B. 
Hartshorne,  purchasers,  and  of  James  N.  Wallace,  as  their 
assignee,  and  that  the  petitioner  be  bound  by  all  the  proceed- 
ings taken  herein  since  the  seventeenth  day  of  April,  1900, 
including  the  order  of  confirmation  of  sale  made  on  said  last 
named  date. 


1072  SUITS    IN    EQUITY. 

It  is  further  ordered  and  decreed,  that  said  James  N.  Wal- 
lace, be  and  he  hereby  is,  dismissed  from  the  record  as  such 
purchaser  and  assignee,  and  discharged  from  all  obligations 
incurred  by  him  on  account  of  the  purchase  by  said  Paton  and 
Hartshorne,  of  said  railroad,  equipment,  franchises  and  prop- 
erty, constituting  the  mortgaged  premises,  and  on  account  of 
the  assignment  by  said  Paton  and  Hartshorne  to  said  Wallace 
of  their  said  bid  and  the  assumption  by  him  of  the  rights  and 
obligations  of  said  purchasers. 

It  is  further  ordered  and  decreed,  that  there  be  paid,  out 
of  the  funds  in  the  registry  of  this  court,  the  costs  of  this  case 
to  date,  taxes  at  $ . 

It  is  further  ordered  and  decreed,  that  there  be  allowed  as 
compensation  to  Samuel  Hunt,  the  receiver,  for  his  services, 
herein,  the  sum  of  twelve  thousand  dollars,  in  addition  to 
the  compensation  heretofore  paid  to,  and  drawn  by,  the  re- 
ceiver, and  that  said  sum  be  paid  out  of  any  funds  in  the 
custody  of  the  receiver,  or  out  of  any  moneys  in  the  registry 
of  the  court. 

It  is  further  ordered  and  decreed,  that  there  be  allowed  to 
Clarence  Brown,  counsel  for  the  receiver  herein,  for  his  serv- 
ices in  that  behalf,  the  sum  of  $4,000.00,  in  addition  to  the 
compensation  heretofore  paid  to  and  drawn  by  said  counsel, 
and  that  said  sum  be  paid,  in  like  manner,  out  of  any  funds 
in  the  custody  of  the  receiver,  or  out  of  any  moneys  in  the 
registry  of  the  court ;  but  such  sum  shall  not  be  paid  without 
a  further  order  of  court  unless  within  thirty  days  from  the 
entry  hereof,  the  purchasers  of  the  mortgaged  premises,  or 
the  Toledo,  St.  Louis  &  Western  Railroad  Company,  substi- 
tuted for  the  purchasers  herein,  shall  file  with  the  receiver  or 
the  clerk  of  this  court  its  consent  to  payment  of  the  sum  al- 
lowed. 

It  is  further  ordered,  adjudged  and  decreed,  that  the  ter- 
mination of  said  receivership  and  the  surrender  of  possession 
of  the  mortgaged  premises  to  said  Toledo,  St.  Louis  &  West- 


NOTICES,    MOTIONS,    ORDERS,   DECREES,    ETC.  1073 

ern  Railroad  Company,  as  assignee  of  the  purchaser  herein, 
shall  be  without  prejudice  to  the  valid  obligations  of  the 
receiver,  which  are  assumed  by  the  purchaser,  and  without 
prejudice  to  the  rights  of  any  creditor  of  the  receivership, 
who  has  heretofore  filed  or  who  may  hereafter,  within  such 
time  as  may  be  fixed  by  the  court,  file  intervening  petitions 
herein  upon  claims  which  have  been  or  shall  be  adjudged 
to  be  prior  in  right  to  the  lien  of  the  first  mortgage  bonds; 
the  court  reserving  the  right  to  retake  and  resell  the  mort- 
gaged premises  for  the  payment  of  such  valid  and  adjudged 
prior  obligations  of  the  receivership,  in  the  manner  provided 
in  the  decree  of  foreclosure  and  sale  heretofore  entered 
herein. 

(1)  This  order  was  made  in  the  case  of  Continental  Trust  Co.  v. 
Toledo,  St.  Louis  &  Kansas  City  Ry.,  pending  in  the  circuit  (now  dis- 
trict) court  of  the  United  States  for  the  northern  district  of  Ohio. 


No.  716. 

Decree  Confirming  Master's  Sale  and  Ordering  Conveyance 
and  Possession  of  a  Railroad  Property.  (1) 

District    Court    of   the    United    States,    Western    District   of 
Tennessee,  Western  Division. 

The  Farmers'  Loan  &  Trust  Company^ 

vs. 
The  Memphis  &  Charleston  Railroad  !  j     -p.     •. 

Company,     The     Central     Trust  j 

Company     of     New     York,     an:^ 

Samuel    Thomas. 

Now  on  this  26th  day  of  February,  1898,  come  again  the 
parties  by  their  respective  solicitors,  and  comes  the  Southern 


1074  SUITS   IN    EQUITY. 

Railway  Company,  and  come  also  the  purchasers,  and  their 
petition  that  the  report  of  Louis  B.  McFarland,  Esq.,  the 
Special  Master,  heretofore  filed  herein  on  February  26,  1898, 
should  be  approved,  and  that  the  sale  to  the  said  purchasers, 
pursuant  to  the  decree  of  foreclosure,  heretofore  entered  here- 
in on  March  2,  1897,  and  to  the  decree  supplemental  thereto, 
entered  herein  on  November  24,  1897,  pursuant  to  the  man- 
date of  the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit,  of 
the  railroad,  property,  rights,  assets  and  franchises  of  the 
Memphis  &* Charleston  Railroad  Company,  briefly  described 
in  said  decree  of  foreclosure  and  sale,  and  in  the  notice  of  sale, 
should  be  confirmed  and  made  absolute,  came  on  to  be  heard ; 
And  it  appearing  by  the  report  of  said  Special  Master,  so 
filed  as  aforesaid,  that  he  has  fully  complied  with  the  direc- 
tions in  said  decree  of  foreclosure,  and  in  said  supplemental 
decree,  as  to  the  sale  of  said  railroad,  property,  rights,  assets 
and  franchises,  and  that  such  purchasers  have  fully  complied 
with  the  directions  of  said  decree  of  foreclosure,  and  of  said 
supplemental  decree,  as  to  the  sale  of  the  said  property;  and 
that  such  purchasers  were  the  highest,  best,  and  accepted  bid- 
ders for  such  railroad,  property,  rights,  assets  and  franchises, 
sold  as  an  entirety  as  provided  in  said  decree,  and  in  said  sup- 
plemental decree,  and  that  the  same  were  struck  ofif  to  the 
said  purchasers  for  the  sum  of  two  million  five  hundred  thou- 
sand dollars  ($2,500,000),  subject,  however,  as  recited  in  said 
decree  of  foreclosure,  and  in  said  supplemental  decree,  to  a 
certain  statutory  lien  in  favor  of  the  state  of  Tennessee  and  to 
two  certain  mortgages,  as  set  forth  in  said  decree  of  fore- 
closure, and  said  supplemental  decree,  and  upon  the  condition 
that,  to  the  extent  that  the  assets,  or  the  proceeds  of  assets,  in 
the  receivers'  hands  should  be  insufficient,  such  purchasers, 
or  their  successors  or  assigns,  should  pay,  satisfy  and  dis- 
charge (a)  any  unpaid  compensation  which  should  be  allowed 
by  the  court  to  the  receivers;   (b)   any  unpaid  indebtedness 


NOTICES.    MOTIONS,    ORDERS,   DECREES,    ETC.  1075 

and  obligations  or  liabilities  which  were  duly  contracted  or 
incurred  by  the  receivers  before  delivery  of  possession  of  the 
property  sold;  and  (c)  also  any  unpaid  indebtedness  or  lia- 
bility contracted  or  incurred  by  said  the  Memphis  &  Charles- 
ton Railroad  Company  in  the  operation  of  its  railroad,  which 
is  prior  in  lien  or  superior  in  equity  to  the  consolidated  first 
mortgage  of  August  20,  1877,  except  such  as  has  been  paid 
and  satisfied  out  of  the  income  of  the  property  in  the  hands 
of  the  receivers,  or  out  of  such  other  assets  upon  the  court  ad- 
judging the  same  to  be  prior  in  lien  or  superior  in  equity  to 
said  mortgage,  and  directing  the  payment  thereof,  no  obliga- 
tion, nevertheless,  being  imposed  upon,  or  being  required  to  be 
assumed  by,  the  said  purchasers,  their  successors  or  assigns, 
to  pay  or  discharge  either  the  said  statutory  lien,  or  the  said 
first  mortgage  bonds,  or  the  said  second  mortgage  bonds,  of 
the  Memphis  &  Charleston  Railroad  Company,  hereinbefore 
referred  to,  and  subject  to  which  the  property  was  sold, 
and  subject  also  to  all  and  singular  the  terms,  condi- 
tions, reservations  and  obligations  in  said  decree  of  fore- 
closure, and  in  said  supplemental  decree,  set  forth ;  and  it  also 
appearing  that  the  said  purchasers  have  made  the  payments 
thus  far  obligatory  upon  them ; 

And  it  further  appearing  to  the  court  by  the  said  petition, 
that  besides  the  cash  payment  made  by  the  said  purchasers, 
they,  being  the  lawful  holders  of  2,257  o^  the  consolidated 
first  mortgage  bonds  of  said  the  Memphis  &  Charleston  Rail- 
road Company,  for  the  principal  sum  of  $1,000  each,  with 
all  unpaid  coupons  thereon,  out  of  a  total  issue  of  2,264,  of 
such  consolidated  first  mortgage  bonds,  have  deposited  with 
said  Special  Master  the  certificate  of  the  Guaranty  Trust  Com- 
pany of  New  York,  that  it  holds  the  said  2,257  of  such  con- 
solidated first  mortgage  bonds,  subject  to  the  order  of  the 
Special  Master,  and  entitling  him  or  his  successor,  on  surren- 
der thereof,  to  receive  the  same,  to  be  canceled  or  credited, 
as  provided  in  the  said  original  decree  of  foreclosure  and  sale, 


1076  SUITS    IN    EQUITY. 

and  in  said  supplemental  decree,  heretofore  entered  herein, 
for  and  on  account  of  the  said  bid  for  the  said  property, 
rights,  assets  and  franchises,  mentioned  in  the  said  decree, 
and  in  said  supplemental  decree,  and  sold  thereunder  as  afore- 
said; 

And  it  being  shown  to  the  satisfaction  of  the  court  that 
the  recitals  in  the  said  report  of  the  Special  Master,  and  in  said 
petition  of  the  purchasers,  are  true,  and  no  sufficient  cause  be- 
ing shown  against  the  report  of  the  said  Special  Master,  or 
the  granting  of  the  petition  of  the  said  purchasers. 

Now,  on  motion  of  Messrs.  Estes  &  Fentress,  solicitors  for 
the  complainant,  the  Farmers'  Loan  &  Trust  Company,  and 
of  Francis  L.  Stetson,  Esq.,  of  counsel  for  the  purchasers,  the 
Central  Trust  Company  of  New  York,  appearing  by  Adrian 
H.  Joline,  Esq.,  as  its  counsel,  Samuel  Thomas,  by  W.  A. 
Henderson,  Esq.,  as  his  counsel,  and  the  Southern  Railway 
Company,  by  Francis  L.  Stetson,  as  its  counsel,  and  all  con- 
senting that  the  said  motion  for  the  confirmation  of  said  sale 
and  of  the  said  report  of  said  Special  Master  made  thereon, 
may  be  now  heard  and  determined,  and  all  questions  there- 
under adjudicated,  it  is  hereby 

Ordered,  adjudged  and  decreed  as  follows,  to  wit : 

That  the  said  report  of  the  Special  Master  be  spread  at 
large  upon  the  record,  and  in  all  things  be  approved,  and  that 
the  sale  made  by  said  Special  Master  to  the  said  purchasers, 
as  joint  tenants  and  not  as  tenants  in  common,  of  all  and 
singular  the  railroad,  equipments,  property,  rights,  assets  and 
franchises  of  the  Memphis  &  Charleston  Railroad  Company, 
as  described  in  and  by  the  said  decree  of  foreclosure,  entered 
in  this  cause  on  March  2,  1897,  and  in  and  by  the  said  sup- 
plemental decree,  entered  herein  on  November  24,  1897,  at  and 
for  the  sum  of  two  million  five  hundred  thousand  dollars 
($2,500,000)  by  them  bid,  be,  and  the  same  hereby  is,  in  all 
things  ratified,  approved,  confirmed  and  made  absolute,  sub- 
ject, however,  to  all  the  terms  and  conditions  of  said  decree. 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1077 

and  of  said  supplemental  decree;  and  subject,  also,  to  all  and 
singular  the  conditions  of  purchase,  as  recited  in  said  decree 
of  foreclosure,  and  in  said  supplemental  decree;  and  the  pur- 
chasers agreeing  to  take  the  property,  so  sold  as  aforesaid, 
subject  to  the  performance  by  them,  or  by  their  successors  or 
assigns,  of  all  pending  contracts  in  respect  thereof,  thereto- 
fore, lawfully  made  by  the  receivers;  the  said  purchasers,  and 
their  successors  or  assigns,  having,  nevertheless,  the  right, 
within  ninety  days  after  the  completion  of  the  sale  and  de- 
livery of  the  deed,  as  hereinafter  provided,  to  elect  whether 
or  not  to  assume  or  adopt  any  lease  or  contract  sold  with  the 
railroad  and  other  property  and  franchises,  neither  they,  nor 
their  successors  nor  assigns,  to  be  held  to  have  assumed  or 
adopted  any  of  said  contracts,  or  leases,  which  they  shall  so 
elect  not  to  assume  or  adopt.  And  this  court  expressly  re- 
serves, for  future  adjudication,  with  power  thereby  to  bind  the 
property  sold,  all  liens,  claims  and  equities  specified  in  and  re- 
served by  the  said  final  decree  of  foreclosure,  and  said  sup- 
plemental decree,  so  as  aforesaid  entered  on  March  2,  1897, 
and  on  November  24,  1897,  respectively. 

And  it  further  appearing  to  the  court  that  the  purchase  of 
said  railroad,  property,  rights,  assets  and  franchises  by  said 
purchasers,  was  for  the  purpose  and  with  the  intent  of  having 
the  title  of  all  the  said  railroad,  property,  rights,  assets  and 
franchises  vested  in,  and  held  by,  the  Southern  Railway  Com- 
pany, a  corporation  created  and  existing  under  the  laws  of  the 
state  of  Virginia,  by  an  Act  of  Assembly,  approved  Feb- 
ruary 20,  1894,  as  to  all  said  railroad,  real  estate  and  fran- 
chises, within  the  states  of  Tennessee  and  Alabama,  and  also 
as  to  all  equipment,  chattels  and  choses  in  action  sold,  wher- 
ever situate,  said  corporation  having  complied  with  all  con- 
ditions of  law  precedent  to  the  transaction  of  business  within 
the  said  states;  and  vested  in  and  held  by  the  Memphis  & 
Charleston  Railway  Company,  a  corporation  to  be  organized 
by  that  name  in  the  state  of  Mississippi,  as  to  all  of  the  rail- 


1078 


SUITS   IN    EQUITY. 


road,  real  estate  and  franchises,  within  the  state  of  Mississippi. 
And  it  further  appearing  that  the  said  purchasers  have  de- 
clared that  such  purchase  was  made  by  them  for  the  use, 
benefit  and  behoof  of  the  Southern  Railway  Company,  its 
successors  and  assigns,  as  to  all  such  railroad,  real  estate  and 
franchises,  within  the  states  of  Tennessee  and  Alabama,  and 
also  as  to  all  said  equipment,  chattels  and  choses  in  action, 
wheresoever  situate;  and  for  the  use,  benefit  and  behoof  of  a 
corporation,  its  successors  and  assigns,  to  be  organized  under 
the  laws  of  the  state  of  Mississippi  under  the  name  of 
Memphis  &  Charleston  Railway  Company,  as  to  all  of  said 
railroad,  real  estate  and  franchises,  within  the  state  of  Mis- 
sissippi ;  and  that  said  purchasers  have  requested  that  all  such 
railroad,  real  estate  and  franchises,  within  the  states  of  Ten- 
nessee and  Alabama,  and  all  said  equipment,  chattels  and 
choses  in  action,  wherever  situate,  may  be  conveyed  and  as- 
signed to,  and  vested  in,  said  Southern  Railway  Company,  its 
successors  and  assigns ;  and  that  all  such  railroad,  real  estate 
and  franchises  within  the  state  of  Mississippi  may  be  conveyed 
and  assigned  to,  and  vested  in,  themselves  or  their  successor, 
the  Memphis  &  Charleston  Railway  Company,  its  successors 
and  assigns ;  so  that,  upon  the  execution  and  delivery  of  such 
conveyance,  said  Southern  Railway  Company,  its  successors 
and  assigns,  and  said  purchasers  or  their  successor,  the  Mem- 
phis &  Charleston  Railway  Company,  its  successors  and  as- 
signs, severally  and  respectively,  shall  have,  possess  and  be 
invested  with,  all  the  estate,  right,  title  and  interest  in  and  to 
such  railroad  and  all  other  property,  with  their  appurtenances, 
and  all  the  franchises,  rights  and  privileges,  described  in  and 
sold  under  the  said  final  decree  of  foreclosure  and  sale,  and 
said  supplemental  decree,  of  this  court,  as  stated  in  said  report 
of  sale ;  and  that  this  court  will  accept  said  Southern  Railway 
Company  as  the  purchaser,  in  its  corporate  name  and  behalf, 
of  all  the  said  railroad,  real  estate  and  franchises,  within  the 
states  of  Tennessee  and  Alabama,  and  also  of  all  equipment, 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1079 

chattels  and  choses  in  action  sold  under  said  decrees,  wherever 
situate;  and  that  it  will  accept  said  Memphis  &  Charleston 
Railway  Company,  when  organized,  its  successors  and  as- 
signs, as  the  purchaser,  in  its  corporate  name  and  behalf,  of  all 
of  the  railroad,  real  estate  and  franchises,  within  the  state  of 
Mississippi,  so  sold  under  said  decree  and  said  supplemental 
decree;  and  that  such  corporations,  severally  and  respectively, 
shall  be  obliged  to  complete  the  said  bid  and  pay  for  all  such 
property  the  balance  remaining  of  such  accepted  bid,  and  in 
all  other  respects  to  comply  with  the  orders  or  decrees  now, 
or  to  be  hereafter,  entered  obligatory  on  such  purchasers; 
and  it  is  further 

Ordered,  adjudged  and  decreed  that  the  said  sale,  so  report- 
ed by  said  Special  Master,  and  the  purchase  of  the  railroad, 
property,  rights,  assets  and  franchises  by  said  purchasers,  shall 
be,  and  the  same  hereby  is  confirmed. 

And  the  court  further  reserves  full  power  from  time  to 
time  to  enter  orders  binding  upon  the  said  Southern  Railway 
Company,  as  purchaser,  requiring  it  and  its  successors  or  as- 
signs, to  pay,  satisfy  and  discharge  (a)  any  unpaid  compen- 
sation which  shall  be  allowed  by  the  court  to  the  receivers; 
(b)  any  unpaid  indebtedness  and  obligations  or  liabilities 
which  shall  have  been  duly  contracted  or  incurred  by  the 
recovers  before  delivery  of  possession  of  the  property  sold; 
and  (c)  also  any  unpaid  indebtedness  or  liabilities  contracted 
or  incurred  by  said  the  Memphis  &  Charleston  Railroad  Com- 
pany in  the  operation  of  its  railroad,  which  is  prior  in  lien 
or  superior  in  equity  to  such  consolidated  first  mortgage  of 
August  20,  1877,  except  such  as  shall  be  paid  and  satisfied  out 
of  the  income  of  the  property  in  the  hands  of  the  receivers 
or  out  of  such  other  assets,  upon  the  court  adjudging  the 
same  to  be  prior  in  lien  or  superior  in  equity  to  said  mortgage, 
and  directing  the  payment  thereof ;  all  payments  for  any  such 
purpose,  made  by  the  purchasers,  or  their  successors  or  as- 
sigTis,  in  advance  of  the  final  accounting  and  discharge  of  the 


1^80  SUITS   IN    EQUITY. 

receivers,  to  be  treated  as  advances,  and  subject  to  final  ad- 
justment upon  such  accounting;  and  to  pay  into  the  registry 
of  this  court  all  such  sums  as  have  been  ordered  or  may  be 
ordered  by  this  court  for  the  payment  of  said  claims  and  lia- 
bilities, which  are  entitled  to  preference  in  payment  out  ol 
the  proceeds  of  sale  prior  to  the  bonds  secured  by  said  con- 
solidated first  mortgage  of  the  Memphis  &  Charleston  Rail- 
road Company;  provided,  however,  that  upon  publication  by 
the  Special  Master,  when  ordered  by  the  court,  as  provided 
in  said  decree,  of  a  notice,  requiring  holders  of  any  claims  to 
present  the  same  for  allowance,  any  such  claims,  which  shall 
not  be  so  presented  or  filed  within  the  period  of  six  months 
after  the  first  publication  of  such  notice,  shall  not  be  enforce- 
able against  the  property  sold,  or  against  the  purchasers,  or 
their  successors  or  assigns,  and  also  to  pay  such  sums  in  cash 
as  may  be  required  in  order  to  pay  all  costs  and  expenses  of 
the  sale,  the  compensations  of  the  Special  Master,  and  all 
charges,  compensations,  allowances  and  disbursements,  pay- 
able out  of  the  purchase  price  bid  for  the  premises,  as  the  same 
shall  be  fixed  and  allowed  by  the  court,  and  also  such  sums  of 
cash,  as  shall  be  payable  out  of  the  net  proceeds  of  sale  in  re- 
spect of  each  of  the  seven  outstanding  consolidated  first  mort- 
gage bonds,  with  all  unpaid  coupons  thereon,  if  and  when 
payment  thereof  shall  hereafter  be  adjudged  by  the  court/ 

But  no  obligation,  however,  is  imposed  upon,  or  required 
to  be  assumed  by,  the  purchasers,  or  by  their  successors  or 
assigns,  to  pay  or  discharge  either  the  said  statutory  lien,  or 
the  said  first  mortgage  bonds,  or  the  said  second  mortgage 
bonds,  of  the  Memphis  &  Charleston  Railroad  Company,  here- 
inbefore referred  to,  and  subject  to  which  the  property  was 
sold ;  and  it  is  further 

Ordered,  adjudged  and  decreed  that  the  said  Special  Mas- 
ter be,  and  hereby  is,  authorized  and  directed,  on  or  after  the 
26th  day  of  February,  1898,  to  sign,  seal,  execute,  acknowl- 
edge and  deliver  a  deed  or  deeds  of  conveyance  to  the  South- 


NOTICES,    MOTIONS,    ORDERS,    DECREES,   ETC. 


1081 


ern  Railway  Company,  conveying  to  it,  its  successors  or  as- 
signs, forever,  subject  to  the  terms  and  conditions  of  said 
decrees,  and  of  this  decree,  all  and  singular  the  said  railroad, 
real  estate  and  franchises,  within  the  states  of  Tennessee  and 
Alabama,  and  also  all  estate,  equipment,  personal  property 
and  choses  in  action  wherever  situate;  including  also  all  in- 
come, proceeds  of  income,  bills  and  accounts  receivable,  cash 
and  other  property,  received  by  the  said  receivers,  and  all 
causes  of  action,  and  judgments,  by  them  acquired  or  obtained 
in  the  management  or  operation  of  the  said  mortgaged  prem- 
ises, to  be  embraced  in  the  conveyance  thereof  or  pertaining 
thereto;  and  also  any  and  all  property  of  the  said  Railroad 
Company,  appurtenant  to  the  premises  and  required  for  use 
in  connection  with  or  for  the  purpose  of  said  railroad  or  the 
business  of  said  railroad  company  and  vested  in  or  standing 
in  the  name  of  the  said  receivers,  or  to  which  the  said  re- 
ceivers in  any  manner  have  acquired  title ;  and  a  deed  or  deeds 
of  conveyance  to  the  purchasers,  or  to  their  successor,  the 
Memphis  &  Charleston  Railway  Company,  conveying  to  them, 
or  to  it,  their  or  its  successors  or  assigns,  forever,  subject  to 
the  same  conditions,  all  and  singular  the  railroad,  real  estate 
and  franchises,  within  the  state  of  Mississippi,  so  as  aforesaid 
sold  under  the  said  decree,  and  said  supplemental  decree,  of 
this  court,  free  from  any  and  all  equity  of  redemption  of  the 
said  the  Memphis  &  Charleston  Railroad  Company,  or  any 
one  claiming  by,  under  or  through  it  except  the  said  statutory 
lien,  and  the  said  two  prior  mortgages,  recited  in  such  decree, 
and  supplemental  decree;  together  with  all  the  corporate  es- 
tate, equity  of  redemption,  rights,  privileges,  immunities  and 
franchises  of  said  the  Memphis  &  Charleston  Railroad  Com- 
pany, and  all  the  tolls,  fares,  freights,  rents,  income,  issues 
and  profits  of  the  said  railroads,  and  all  interest  and  claims 
and  demands  of  every  nature  and  description,  and  all  the 
reversion  and  reversions,  remainder  and  remainders  thereof, 
at  any  time  owned  or  acquired  by,  and  now  in  the  posses- 


1082 


SUITS   IN    EQUITY. 


sion  of,  said  the  Memphis  &  Charleston  Railroad  Company, 
or  the  receivers  thereof;  the  form  of  said  conveyance  being 
now  submitted  to  and  approved  by  this  court,  and  filed  here- 
with. 

In  order  to  facilitate  the  recording-  thereof,  several  counter- 
parts of  such  deed,  or  deeds,  may  be  executed,  acknowledged 
and  delivered  by  the  Special  Master,  all  or  any  one  or  more 
of  which  may  be  recorded,  and  any  one  or  more  of  such 
counterparts,  when  executed,  acknowledged  and  delivered, 
severally  or  collectively,  shall  be  deemed  to  be  an  original, 
and  for  all  intents  and  purposes  constitute  a  single  instrument. 

On  March  i,  1898,  or  as  soon  thereafter  as  practicable,  on 
exhibition  of  any  such  deed,  or  deeds,  executed  and  delivered 
by  the  Special  Master,  as  herein  ordered,  and  upon  the  re- 
quest of  the  grantees  thereunder,  or  upon  the  several  requests 
of  the  said  Southern  Railway  Company,  or  of  the  purchasers, 
or  of  said  Memphis  &  Charleston  Railway  Company,  when 
organized,  the  receivers  of  this  court  are  authorized,  directed 
and  required  to  let  the  said  Southern  Railway  Company  and 
the  said  purchasers,  or  the  said  Memphis  &  Charleston  Rail- 
way Company,  severally  and  respectively,  its  or  their  succes- 
sors or  assigns,  into  the  possession  of  the  premises  therein 
conveyed ;  and  the  receivers,  or  any  party  in  the  cause  having 
possession  thereof,  shall  deliver  over  to  the  said  Southern 
Railway  Company,  and  to  the  said  purchasers,  or  to  their  suc- 
cessor, the  Memphis  &  Charleston  Railway  Company,  sev- 
erally and  respectively,  their  or  its  successors  or  assigns,  the 
possession  of  all  and  singular  the  railroad  and  property,  de- 
scribed in  and  conveyed  to  them,  respectively,  by  such  deed 
or  deeds,  and  sold  as  aforesaid,  and  to  the  Southern  Railway 
Company  all  income,  proceeds  of  income,  bills  and  accounts 
receivable,  cash  and  other  property  received  by  the  receivers, 
and  all  causes  of  action,  and  judgments,  by  them  acquired  or 
obtained  in  the  management  or  operation  of  the  mortgaged 
premises,  to  be  embraced  in  such  conveyance  thereof  or  per- 


NOTICES,    MOTIONS,   ORDERS,   DECREES,   ETC.  1083 

taining  thereto;  and  also  any  and  all  property  of  the  said 
railroad  company,  appurtenant  to  the  premises  and  required 
for  use  in  connection  with  or  for  the  purposes  of  said  railroad 
or  the  business  of  said  railroad  company,  invested  in  or  stand- 
ing in  the  name  of  the  said  receivers,  or  to  which  the  said 
receivers  in  any  manner  shall  have  acquired  title;  and  it  is 
further 

Ordered,  adjudged  and  decreed  that  by  way  of  further  as- 
surance and  confirmation  of  title  to  such  Southern  Railway 
and  to  such  Memphis  &  Charleston  Railway  Company,  sev- 
erally and  respectively,  the  receivers  of  this  court,  and  also 
the  Memphis  &  Charleston  Railroad  Company,  by  its  proper 
officers  and  under  its  corporate  seal,  and  the  Farmers'  Loan 
&  Trust  Company,  trustee,  shall,  under  the  direction  of  the 
Special  Master,  upon  request  of  said  Southern  Railway  Com- 
pany, and  of  the  said  purchasers,  or  of  their  successor,  the 
said  Memphis  &  Charleston  Railway  Company,  severally  and 
respectively,  sign,  seal,  execute,  acknowledge  and  deliver  to 
said  two  corporations,  severally  and  respectively,  all  proper 
deeds  of  conveyance,  transfer,  release  and  further  assurance, 
of  all  and  singular  the  mortgaged  property  and  premises,  and 
every  part  and  parcel  thereof,  of  every  kind  and  description 
and  wherever  situate,  so  as  aforesaid  sold  under  the  said  de- 
cree, and  said  supplemental  decree,  of  this  court,  and  em- 
braced in  the  deed  of  the  Special  Master,  so  as  fully  and 
completely  to  transfer  to,  and  to  vest,  severally  and  respective- 
ly, in  the  Southern  Railway  Company  and  in  the  Memphis  & 
Charleston  Railway  Company,  when  organized,  and  their 
successors  and  assigns,  the  full  legal  and  equitable  title,  as 
above  provided,  to  such  railroad,  property,  rights,  assets  and 
franchises,  sold  or  intended  to  be  sold  under  the  decree  and 
supplemental  decree  of  this  court. 

The  Special  Master  shall  keep  on  deposit  to  his  order  with 
the  Guaranty  Trust  Company  of  New  York  all  of  the  said 
2,257  consolidated  first  mortgage  bonds,  with  all  unpaid  cou- 


1084 


SUITS    IN    EQUITY. 


pons  thereon,  so  that  the  same  may  be  stamped  with  the  credit 
or  the  payment  on  account  thereof  upon  the  bid  of  such  pur- 
chasers, after  the  amount  thereof  shall  be  adjudged  by  this 
court ;  such  bonds  and  coupons  thereafter  to  be  returned  to  the 
said  purchasers,  their  successors  or  assigns. 

The  court  reserves  full  power,  notwithstanding  such  con- 
veyance and  delivery  of  possession,  to  retake  and  resell  the 
property  this  day  confirmed,  if  the  purchasers,  or  their  suc- 
cessors or  assigns,  shall  fail  or  neglect  fully  to  complete  such 
purchase  and  to  comply  with  the  orders  of  the  court  in  respect 
to  full  payment  and  performance  of  said  bid,  or  to  pay  into 
court,  in  accordance  with  such  decree,  of  sale  and  supplemen- 
tal decree,  all  such  sums  of  money  hereafter  ordered  by  the 
court  to  be  paid  into  its  registry  to  discharge  any  and  all  such 
debts,  liens  or  claims,  as  it  may  adjudge  and  decree  should  be 
paid  out  of  the  proceeds  of  sale  in  preference  to  the  ^-onds 
secured  by  the  mortgage  of  the  Memphis  &  Chat^leston  Rail- 
road Company  herein  foreclosed.  All  payments  for  any  such 
purpose  made  by  the  purchasers,  or  their  successors  or  assigns, 
in  advance  of  the  fmal  accounting  and  discharge  of  the  re- 
ceivers, shall  be  treated  as  advances,  and  subject  to  final  ad- 
justment upon  such  accounting. 

The  Spe'/ial  Master  shall  deposit,  subject  to  the  order  of 
this  cou-t,  any  cash  paid  to  him  by  the  purchasers,  their  suc- 
cessor'i  or  assigns,  in  the  registry  of  this  court  at  Memphis, 
Tennessee,  to  abide  the  further  order  of  the  court  herein,  and 
shall  deposit  all  bonds  and  attached  coupons,  received  by  him 
")r  paid  over  to  him  by  the  purchasers,  their  successors  or  as- 
signs, with  the  Guaranty  Trust  Company  of  New  York,  so 
that  the  same  may  be  stamped  with  the  credit  or  payment  on 
account  thereof  upon  such  bid,  after  the  amount  thereof  shall 
be  adjudged  by  the  court,  such  bonds  and  coupons  thereafter 
to  be  returned  to  the  said  purchasers,  their  successors  or  as- 
signs ;  and  it  is  further 

Ordered,  adjudged  and  decreed  by  the  court  that  all  of  the 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1085 

right,  title  and  interest  of  the  Memphis  &  Charleston  Rail- 
road Company,  and  of  all  the  other  parties  to  this  cause,  in 
and  to  the  property  reported  as  sold  by  the  special  master  to 
the  said  purchasers,  be,  and  the  same  hereby  is,  divested  out 
of  the  Memphis  &  Charleston  Railroad  Company,  and  out 
of  all  of  the  other  parties  to  this  cause,  excepting-  the  South- 
ern Railway  Company;  and  that  all  of  the  railroad,  real 
estate  and  franchises  within  the  states  of  Tennessee  and 
Alabama,  and  also  all  of  the  equipment,  chattels  and  choses. 
in  action,  so  sold  as  aforesaid,  wherever  situate,  be,  and 
hereby  the  same  are,  vested  in  the  Southern  Railway  Com- 
pany, its  successors  and  assigns;  and  that  all  of  the  railroad, 
real  estate  and  franchises  within  the  state  of  Mississippi  be, 
and  hereby  the  same  is,  vested  in  the  said  purchasers  and 
in  their  successor,  the  Memphis  &  Charleston  Railway  Com- 
pany, a  corporation  of  Mississippi,  when  organized,  its  suc- 
cessors and  assigns ;  and  upon  the  application  of  the  South- 
ern Railway  Company,  its  successors  or  assigns,  and  of  the 
purchasers,  or  of  the  said  Memphis  &  Charleston  Railway 
Company,  or  its  successors  or  assigns,  or  of  any  of  them, 
the  clerk  of  this  court  will  furnish  to  the  applicant  certified 
copies  of  this  decree,  for  registration  as  a  muniment  of  title. 

(1)  This  decree  was  entered  in  the  case  of  The  Farmers'  Loan  & 
Trust  Co.  V.  Memphis  &  Charleston  R.  Co.,  in  the  circuit  (now  dis- 
trict) court  of  the  United  States  for  the  western  district  of  Tennessee. 

Decree  of  confirmation  may  be  made  in  vacation.  Central  Trust  Co. 
V.  Sheffield,  etc.,  Ry.  Co.,  60  Fed.  9. 


No.  717. 

Decree  Quieting  Title. 

[Caption.'} 

This  cause  came  on  for  hearing  this  6th  day  of  April, 
1899,  before  the  Honorable  C.  D..  judge,  presiding,  and  was 
heard  upon  the  bill,  answers,  exhibits,  agreements  of  parties, 


1086  SUITS   IN    EQUITY. 

proof  in  the  cause  and  arguments  of  counsel,  and  it  appearing 
that  the  bill  was  filed  to  remove  a  cloud  upon  plaintiff's  title  to 
the  west  one-half  (1-2)  of  the  south  one-half  (1-2)  of  lot  No. 
fifty-two  (52),  and  the  west  one-half  (1-2)  of  the  north  forty- 
five  (45)   feet  of  lot  No.  fifty- four  (54)  on  Chestnut  street, 

in  the  city  of  ,  county,  ,  which  cloud  was 

caused  by  the  recovery  by  defendants  of  a  judgment  against 
A.  J.  and  G.  W.,  the  former  owners  of  said  real  estate,  in  the 

•Chancery  Court  of , ,  issuance  of  an  execution  upon 

said  judgment,  the  levy  of  same  by  the  sheriff  of county, 

. ,  upon  the  aforesaid  real  estate,  a  sale  of  the  same  by  the 

sheriff,  at  which  sale  defendants,  J.  M.  and  R.  M.,  became  the 

purchasers,    and   on   the  day   of   ,    a   deed   was 

executed    to   them    by    the    sheriff   of   county,    , 

and   is   of   record   in  the   register's   office  of  county, 

,   in  Book   "N,"   Volume  "6,"   page  428,   et  seq.,  and 

because  it  appears  to  the  court  that  at  no  time  since  the  recov- 
ery of  defendants'  said  judgment,  have  the  said  A.  J.  and  G. 
W.,  been  seized  with  a  beneficial  interest  in  said  real 
estate,  but  that  the  same  is  now  the  property  of  plaintiffs, 
who  are  entitled  to  the  relief  prayed  for  in  their  bill,  it  is 
therefore  ordered,  adjudged  and  decreed  that  plaintiffs  are 
entitled  to  have  the  cloud  caused  by  the  execution  and  regis- 
tration of  the  deed  aforesaid  removed  from  their  title  and 
the  said  defendants  and  their  privies  in  estate  or  blood  are 
hereby  perpetually  enjoined  from  setting  up  title  to  said  real 

estate   by    reason    and    sale   by   the   sheriff    of   said    

county,  and  the  purchase  at  said  sale  by  defendants,  J.  M. 
and  R.  M. ;  or  by  reason  of  the  execution  to  them  by  the  sheriff 
of county  of  the  said  deed  of  July  25,  1898,  and  registra- 
tion of  same;  the  court  being  of  the  opinion  and  so  decrees 
that  said  defendants  took  nothing  by  said  deed,  but  that  said 
sale  was  invalid  and  void. 

The  plaintiffs  will  be  entitled  to  a  copy  of  this  decree  as  a 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1087 

muniment  of  title  upon  the  payment  by  them  to  the  clerk  of 
his  fees  for  a  certified  copy. 

The  defendants  will  pay  all  the  costs  of  the  cause  for  which 
an  execution  will  issue. 


No.  718. 

Decoee  Subjecting  Absent  Defendant's  Property   to 
Payment  of  Judgment. 
[^Caption  ^ 

This  cause  came  on  to  be  heard  on  the day  of  — 


1894,  on  the  bill  of  complaint  and  testimony,  [or  as  may  be\ 
the  said  defendants  being  represented  by  counsel.  Upon  the 
hearing  of  the  case  the  court  thereupon  finds  that  all  of  the 
defendants  have  been  duly  notified  of  the  pendency  and  prayer 
of  the  bill,  and  have  failed  to  answer  the  same ;  and  the 
court  further  finds  from  the  testimony  that  the  defendant, 
E.  F.,  has  in  his  possession  and  belonging  to  C.  D.  a  large 
sum  of  money ;  that  the  said  plaintiff"  is  entitled  to  have 
sufficient  of  the  said  money  applied  to  the  payment  of  the 
judgment  and  costs  fully  described  in  his  bill  in  this  cause, 
subject  to  any  claim  which  may  have  been  set  in  any  suit  in 
other  courts  prior  to  the  filing  of  the  bill  in  this  cause;  and 
that  there  is  now  due  to  the  said  plaintiff",  on  the  said  judg- 
ment and  costs,  the  sum  of dollars,  which,  with  interest 

dollars,  and  clerk's  additional  costs   in   said  cause,  to 

wit, dollars,  makes  a  total  of dollars  due  the  said 

plaintiff". 

It  is  therefore   ordered,  adjudged,  and   decreed  that  the 
said  defendant,  E.  F.,  pay  into  the  registry  of  this  court  the 

said  sum  of dollars,  and  in  addition  thereto  the  costs 

in  this  cause,  taxed  at dollars,  the  sum  so  paid  to  be 

credited  on  any  sum  which  may  be  found  due  from  him  to 
the  said  C.  D.,  or  to  the  defendant,  G.  H.,  and  that  the  said 
C.  D.  and  G.  H.  be  forever  enjoined  from  collecting  the 
amount  so  paid  by  said  E.  F.  from  said  E.  F.,  or  from  re- 


1088  SUITS  IN    EQUITY. 

fusing  to  credit  the  said  sum  upon  any  amount  which  may- 
be found  due  from  the  said  E.  F,  to  the  said  C.  D.,  as  afore- 
said, provided,  however,  that  this  decree  shall  not  interfere 
with  the  payment  to  any  other  creditor  of  the  said  C.  D., 
who  has  brought  suit  to  subject  the  same,  prior  to  the  filing 
of  the  bill  in  this  cause. 


No.  719. 

Order  of  Distribution. 

[Caption.] 

On  motion  of  R.  X.,  counsel  for  the  plaintiff,  and  it  ap- 
pearing to  the  court  that  in  accordance  with  a  decree  here- 
tofore entered,  the  defendant,  E.  F.,  has  paid  into  the  regis- 
try of  this  court  the  sum  of dollars  in  obedience  there- 
to, and  the  court  proceeding  to  distribute  the  same,  orders 
and   directs  that  after  the  payment  of  the   following  sums, 

to-wit   [set  forth  the  items],  that  the  sum  of  dollars 

shall  be  paid  to  the  plaintiff,  A.  B. 

And  it  is  further  ordered  that  the  sum  of  dollars  be 

duly  credited  on  the  judgment  and  costs  in  the  case  of  A.  B. 

vs.    C.   D.,   No.   ,   in  the   district   court   of   the   United 

States  for  the  district  of  ,  in  full  satisfaction  of 

the  same. 


No.  720. 

Decree  Awarding  Perpetual  Injunction  Restraining  Munici- 
pality from  Interfering  with  Telephone  Company. 

[Caption.] 

This  cause  came  on  to  be  heard  on  this day  of , 

A.  D.  ,  before  the  Hon.  D.  C,  holding  the  district  court 

of  the  United  States  for  the district  of ,  divi- 
sion, upon  the  pleadings  and  proof  on  file,  including  all  ex- 


NOTICES,    MOTIONS,    ORDERS,    DECREES,    ETC.  1089 

hibits  to  the  pleadings  and  depositions,  and  all  stipulations  and 
argument  of  counsel  therein. 

From  the  consideration  of  all  of  which  the  court  is  of  the 
opinion,  and  doth  adjudge  and  decree,  as  follows : 

First.  That  the  matter  in  dispute  in  this  cause,  exclu- 
sive of  interest  and  costs,  exceeds  the  sum  or  value  of  $2,- 
000.00. 

Second.  That  the  complainant,  A,  B.  Telephone  Company, 
is  vested  with  the  right  of  maintaining  and  operating  a  tele- 
phone system  or  telephone  exchange  on  or  over  the  streets, 

avenues,  alleys  and  squares  of  the  city  of ,  and  has  the 

right  to  go  upon  and  use  said  streets,  avenues,  alleys  and. 
squares  not  only  for  the  purpose  of  maintaining  its  long 
distance  toll  line,  but  also  for  the  purpose  of  constructing, 
maintaining  and  using  a  local  telephone  exchange,  and  is  en- 
titled to  the  injunctive  relief  prayed  for  in  the  bill. 

Third.  That  the  preliminary  injunction   granted  on  May 

,  be  made  perpetual,  and  the  defendant  board  of  mayor 

and  aldermen  of  the  town  of  ,  their  agents,  marshals, 

police,  servants  and  attorneys,  and  each  of  them  be,  and  they 
hereby  are,  perpetually  enjoined  and  restrained  from  interfer- 
ing with  complainant,  its  officers,  agents  or  employes  in  erect- 
ing poles,  stringing  wires  or  cables,  or  placing  telephone  in- 
struments, either  for  the  purpose  of  repairs,  or  to  make  con- 
nections with  new  subscribers,  within  the  corporate  limits  of 

said  city  of ,  or  from  interfering  with  complainant  in  the 

construction,  maintenance  or  operation  of  its  toll  lines  or  tele- 
phone exchange  in  the  said  city  of . 

Fourth.  That  the  defendant,  board  of  mayor  and  aldermen 

of  the  city  of ,  pay  all  the  costs  of  this  cause,  for  which 

execution  will  issue. 


1090  SUITS   IN    EQUITY. 

No.  721. 

Decree   Confirining  Sale  Ordering   Deed  and  Writ  oi  Pos- 
session. 

[Caption.'] 

This  cause  came  on  to  be  heard  on  the  report  of  the  Special 

Master  of  sale,  made  pursuant  to  order  of day  of , 

and  said  report  of  sale  being  unexcepted  to,  is  in  all  things 
confirmed. 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court 
that  all  the  right,  title,  interest  and  claim  of  the  complainants 
and  the  defendant  in  and  to  the  real  estate,  personal  property, 
rights,  privileges  and  franchises  sold  by  the  Special  Mas- 
ter, be  and  the  same  is  divested  out  of  the  complainants 
and  defendants,  and  each  of  them,  and  that  the  same  be  vested 
in  the  purchaser,  W.  W.,  trustee,  his  heirs  and  assigns,  for- 
ever, in  fee  simple. 

And  it  appearing  to  the  court  that  the  purchaser  has  paid 
the  purchase  price  and  the  cost  of  the  cause  and  expenses  of 
the  sale,  the  Special  Master  is  directed  to  make  the  purchaser 
a  deed  in  accordance  with  this  decree,  and  if  necessary,  writ 
of  possession  will  issue  to  put  the  purchaser  in  possession. 


STIPULATIONS.  1091 

STIPULATIONS. 
Miscellaneous. 

No.  722. 

Stipulation  Concerning  Facts,  Procedure,  Costs,  etc 

[Caption.l 

Mr.  Gordon,  for  the  plaintiff,  introduced  the  following 
agreement : 

"In  this  cause,  for  the  purpose  of  this  suit,  the  parties 
hereto  agree  upon  the  following  facts,  evidence  of  which, 
except  this  agreement,  need  not  be  made  further  upon  the 
trial : 

"1.  Complainant  and  defendant  are  citizens  of  different 
states,  and  are  corporations,  as  shown  and  alleged  in  the 
complaint. 

"2.  A  written  instrument  in  words  and  figures  as  set  out 
in  subdivision  II  of  the  complaint  was  executed  in  duplicate 
by  the  parties  to  this  suit,  one  copy  being  in  possession  at 
the  present  time  of  each  of  the  parties,  and  the  copy  of  said 
instrument  as  set  out  in  said  subdivision  of  said  complaint 
is  a  true  and  correct  copy  thereof. 

"3.  The  land  mentioned  and  described  in  said  contract 
consists  of  the  land  described  in  said  subdivision  III  of  the 
complaint,  and  any  other  land  or  leases  of  complainant  in 
the  Vinton  oil  field  in  Louisiana. 

"4.  The  letters  copied  in  subdivision  IV  of  the  complaint 
■were  written  and  received  by  the  respective  parties  on  the 
day  of  their  dates. 

"5.  It  was  the  intention  and  effect  of  the  Sun  Company's 
letter,  above  referred  to,  to  exercise  its  option  to  extend  the 
purchase  contract  for  the  additional  two  years'  period;  and 
it  was  the  intention  and  effect  of  the  Vinton  Petroleum 
Company's  letter  to  recognize  and  confirm  such  extension. 
This  is  without  prejudice  to  either  party's  contention  as  to 
price. 


1092  SUITS   IN    EQUITY. 

"6.  During  the  ten  days  succeeding  immediately  Decem- 
ber 24,  1914,  there  was  in  existence  an  oil  purchase  contract 
between  the  Sun  Company,  as  purchaser,  and  the  Gum  Cove 
Oil  Company,  as  seller,  said  contract  having  been  entered 
into  December  5,  1913,  and  extending  for  a  period  of  two 
years,  and  provided  a  maximum  daily  purchase  of  eight 
hundred  barrels,  the  price  provided  in  said  contract  being 
one  dollar  per  barrel.  No  payments  under  said  contract 
were  made  by  the  Sun  Company  during  the  ten  days  im- 
mediately succeeding  December  24,  1914;  such  payments, 
however,  were  made  on  dates  prior  and  on  dates  subsequent 
to  said  ten  days;  the  oil  being  taken  by  the  Sun  Company 
during  said  ten  days  under  this  contract  was  oil  produced  by 
the  seller  from  its  holdings  in  the  Vinton  oil  field  and  of 
similar  character  and  kind  to  that  produced  by  the  Vinton 
Petroleum  Company,  and  said  contract  and  the  contract 
price  evidenced  thereby  was  made  in  good  faith  by  the 
parties. 

"7.  It  is  agreed  that  this  suit  shall,  so  far  as  a  money 
judgment  is  concerned,  involve  only  the  oil  produced  by  the 
Vinton  Petroleum  Company  under  said  extended  contract, 
during  the  period  beginning  December  25,  1914,  and  ending 
March  31,  1915,  and  the  parties  shall  make  such  amendment 
of  pleading  as  may  be  necessary  to  carry  this  provision  into 
efifect.  The  amount  of  oil  belonging  to  the  Vinton  Petro- 
leum Company  and  so  produced  and  tendered  by  it  and  re- 
ceived by  the  Sun  Company  under  said  extension  of  said 
contract  during  said  period,  December  25,  1914,  to  March 
31,  1915,  both  inclusive,  is  134,919.91  barrels.  The  amount 
of  money  advanced  by  the  Sun  Company  to  the  Vinton 
Petroleum  Company,  in  the  same  period  by  reason  of  said 
oil,  is  sixty-five  thousand,  eight  hundred  and  twenty-three 
and  21/100  ($65,823.21)  dollars.  Should  the  court  find 
from  its  decision  as  to  the  correct  contract  price  that  the 
,said  Sun  Company  is  due  for  said  oil  an  amount  in  excess 
of  the  amount  of  money  above  named,  the  Vinton  Petro- 
leum Company  shall  be  entitled  to  a  judgment  for  said  ex- 


STIPULATIONS.  1093 

cess.  On  the  other  hand,  should  the  amount  the  Sun  Com- 
pany should  pay  for  said  oil  be  found  by  the  court  to  be  less 
than  the  amount  advanced,  as  above  stated,  judgment  shall 
be  for  the  Sun  Company  for  the  amount  of  the  excess  ad- 
vanced by  it.  It  is  agreed  that  the  amount  of  said  advance- 
ment, as  above  stated,  was  agreed  upon  without  any  refer- 
ence whatever  to  the  question  as  to  what  the  correct  contract 
price  should  be,  and  shall  not  be  construed  as  evidence  of 
having  any  bearing  upon  the  question  of  the  correct  con- 
tract price. 

"8.  It  is  further  agreed  that  the  cost  of  the  trial  court  in 
this  cause  shall  be  borne  equally  by  the  two  parties  regard- 
less of  the  judgment. 

"9.  It  is  agreed  that  either  party  may,  subject  to  the  rul- 
ings of  the  court,  present  testimony  orally  upon  the  hearing 
of  this  cause. 

"10.  This  agreement,  subject  to  all  legal  objections  as  to 
admissibility,  materiality  and  relevance,  etc.,  may  be  intro- 
duced in  evidence  as  a  whole  or  by  paragraphs  by  either 
party,  and  its  introduction  shall  relieve  both  parties  of  the 
necessity  of  making  further  proof  upon  any  of  the  matters 
herein  agreed  to  and  so  introduced ;  said  agreement  being 
made  for  the  purpose  of  expediting  the  trial  of  the  cause 
and  confining  the  issues  as  much  as  possible  to  the  good 
faith  matters  in  dispute  between  the  parties. 

"Executed  in  duplicate  April   10,   1915." 

(Signed  by  Attorneys  for  Parties.) 


No.  723. 

Stipulation  Concerning  Facts  but  Limiting  Their  Use. 

[Caption.] 

For  the  purposes  of  the  trial  of  this  action,  but  not  for 
any  accounting  ordered  thereon,  it  is  hereby  stipulated  that 
the  defendant  may  offer  in  evidence  the  following  state- 
ments of  fact  subject  to  the  same  objections  which  the  plain- 


1094  SUITS  IN    EQUITY. 

tiff  might  have  urged  if  proof  of  said  facts  had  been  offered 
in  the  ordinary  manner;  that  if  the  defendant  shall  offer  in 
evidence  any  part  of  this  stipulation  on  the  trial  of  this 
action,  plaintiff  shall  be  at  liberty  to  offer  in  evidence  any 
other  part  subject  to  the  like  objections  on  the  part  of  the 
defendant. 

It  being  expressly  understood,  however,  that  the  plaintiff 
is  not  entitled  to  offer  in  evidence  the  stipulation  or  any 
part  thereof  on  the  trial  of  this  action  until  and  unless  the 
defendant  shall  have  offered  in  evidence  the  whole  or  any 
part  thereof.  Either  party  may  offer  other  and  further  evi- 
dence with  respect  to  any  of  the  matters,  but  not  in  con- 
tradiction thereof. 

The  making  of  this  stipulation  is  without  prejudice  to  any 
of  the  motion  or  objections  made  by  either  party  in  the 
action,  and  the  mentioning  of  the  endorsements  on  plaintiff's 
exhibit  1  is  not  and  shall  not  be  construed  to  be  an  admis- 
sion on  the  part  of  defendant  that  any  securities  set  forth  in 
such  endorsement  come  within  the  pleadings  herein  or  the 
scope  of  this  suit  or  that  same  are  relevant,  competent  or 
admissible. 


No.  724. 

Stipulation  Concerning  Facts  and  Exhibits  in  Unfair  Competi- 
tion Case. 

[Caption.li 

1.  It  is  stipulated  by  and  between  counsel  for  plaintiff 
and  for  defendant  that  the  plaintiff,  the  Eisenstadt  Manu- 
facturing Company,  is  a  corporation  duly  organized  and 
existing  under  the  laws  of  the  state  of  Missouri,  and  having 
its  principal  place  of  business  at  the  city  of  St.  Louis  in  the 
said  state;  that  the  business  of  said  corporation  is  the  manu- 
facture and  sale  of  articles  of  jewelry. 

2.  It  is  further  stipulated  and  agreed  that  the  defendant, 
prior  to  the  beginning  of  this  action,  and  on  or  about  May 
1,  1915,  first  sold  to  wholesale  dealers   (jobbers)   in  various 


STIPULATIONS.  1095 

localities  in  the  United  States  links  identical  in  size,  con- 
struction and  appearance  with  the  sample  link  below  at- 
tached, marked  "Plaintiffs'  Exhibit,  Defendant  Link,"  and 
the  defendant  so  continued  to  sell  links  in  all  respects  like 
the  said  sample  from  May  1,  1915,  to  the  time  of  filing  of 
the  bill  of  complaint  herein. 

3.  It  is  further  stipulated  and  agreed  that  true  photo- 
graphic or  lithographic  copies  of  drawings,  cuts  and  en- 
gravings or  paper  exhibits  may  be  offered  and  used  in  evi- 
dence with  the  same  force  and  effect  as  the  originals,  pro- 
vided, however,  that  the  proposed  copies  shall  be  first 
exhibited  to  the  opposing  counsel  and  approved  by  him  as 
being  true  copies  subject  to  all  objections  available  against 
the  said  originals. 

4.  It  is  further  stipulated  and  agreed  that  the  ordinary 
printed  patent  office  copies  of  specifications  and  drawings  of 
the  United  States  letters  patent  may  be  offered  and  used  in 
evidence  in  this  case  by  either  party  with  the  same  force  and 
effect  as  the  originals  of  said  letters  patent,  or  duly  certified 
copies  thereof. 

5.  Subject  to  objection  on  the  part  of  complainant  that 
the  same  is  irrelevant  and  immaterial  to  any  issue  in  this 
cause,  it  is  stipulated  and  agreed  that  the  following  is  a 
true  copy  of  a  letter  sent  May  11,  1915,  to  defendant  by 
John  E.  Stryker  and  received  by  defendant  in  due  course, 
and  that  said  Stryker  was  at  that  time  acting  for  H.  B. 
Pratt,  referred  to  in  the  bill  of  complaint :  [Here  follows 
letter.] 

And  it  is  stipulated  and  agreed  that  the  following  is  a 
true  copy  of  a  letter  from  A.  and  B.,  being  then  attorneys 
for  defendant,  in  reply  to  said  letter  dated  May  11,  1915, 
the  letter  having  been  received  by  said  John  E.  Stryker  in 
due  course:     [Here  follozcs  letter.] 

6.  Subject  to  objection  on  the  part  of  complainant  that 
the  same  is  irrelevant  and  immaterial  to  any  issue  in  this 
cause,  it  is  stipulated  and  agreed  that  the  following  is  a  true 
copy  of  a  letter  sent  June  10,   1915,  to  the  defendant  by  F. 


1096  SUITS  IN    EQUITY. 

and  H.,  and  received  by  the  defendant  in  due  course,  and 
that  said  F.  and  H.  were  at  that  time  acting  for  complain- 
ant:   [Here  follows  letter.] 

And  it  is  stipulated  and  agreed  that  the  following  is  a 
true  copy  of  a  letter  sent  by  defendant  in  reply  to  said  letter 
of  F.  and  H.,  and  received  by  the  latter  in  due  course: 
[Here  follows  letter.] 

7.  Subject  to  objection  on  the  part  of  complainant  'that 
the  same  is  irrelevant  and  immaterial  to  any  issue  in  this 
cause,  it  is  stipulated  and  agreed  that  the  annexed  circular 
marked  "Defendant's  Exhibit  B"  is  a  true  copy  of  circulars 
sent  out  by  complainant  by  permission  and  under  the  au- 
thority of  H.  B.  Pratt.  M.  N., 

Solicitor  and  Counsel  for  Plaintiff. 

O.  P., 
Solicitor  and  Counsel  for  Defendant. 


No.  725. 

Stipulation  for  Continuance  of  Case. 
[Caption.] 

It  is  hereby  stipulated  and  agreed  by  and  between  the 
complainant  and  Nellie  M.  Joyce,  the  only  defendant  who 
answered  in  the  above  entitled  case,  that  said'  case  be,  and 
the  same  hereby  is,  continued  from  the  July,  1914,  term  of 
the  above  entitled  court  to  and  until  the  January,  1915, 
term  of  said  court.  A.  B., 

Attorney  for  Complainant. 
C.  D., 
Attorney  for  Defendant,  Nellie  N.  Joyce. 


No.  726. 

Stipulation  for  Change  of  Venue,  Waiving  Issuance  of  Sub- 
poena, for  Procedure,  etc. 

[Caption.] 

Whereas,  the   parties  have  heretofore  agreed   and   settled 
the  form  of  the  pleadings  in  the  above  entitled  matter,  but 


STIPULATIONS.  1097 

at  the  time  of  such  agreement  it  was  intended  that  the  venue 
of  such  cause  should  be  laid  in  the  United  States  district 
court  for  the  fourth  division  of  the  district  of  Minnesota, 
and  said  pleadings  were  entered  accordingly;  and, 

Whereas,  it  has  been  agreed  that  the  venue  of  said  cause 
shall  be  changed  to  the  fifth  division  of  said  district; 

Now,  therefore,  for  the  purposes  last  indicated  and  other 
purposes  incident  to  the  trial  of  said  cause,  it  has  been  and 
hereby  is  mutually  stipulated  and  agreed  between  the  parties 
as  follows: 

First.  That  the  venue  of  said  cause  in  the  pleadings  here- 
tofore prepared  and  agreed  to  as  aforesaid  shall  be  changed 
from  the  fourth  to  the  fifth  division  of  the  district  of  Minne- 
sota, and  as  so  changed  such  pleadings  shall  be  immediately 
filed  in  the  last-named  court. 

Second.  That  on  filing  of  the  complainant's  bill  herein, 
defendant  will  forthwith  cause  its  general  appearance  to  be 
duly  entered  in  said  cause  and  court  and  its  answer  to  said 
bill  to  be  immediately  filed  therein,  issuance  of  chancery 
subpoena  to  compel  the  appearance  of  the  defendant  being 
hereby  expressly  waived. 

Third.  That  said  cause  shall  be  immediately  assigned  by 
the  clerk  of  said  court  to  the  calendar  of  causes  for  trial 
and  that  the  same  shall  be  noted  and  set  for  hearing  and 
trial  on  the  19th  day  of  March,  1914,  at  10  o'clock  a.  m. 
of  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard, 
at  the  government  building  in  the  city  of  Duluth,  Minnesota. 

Fourth.  That  the  evidence  in  said  cause  shall  be  taken 
orally  by  the  court  in  accordance  with  the  provisions  of 
rule  46  of  the  new  equity  rules  of  the  supreme  court  of  the 
United  States  for  1912,  and  the  hearing  and  conduct  of  said 
cause  shall  be  in  all  respects  as  provided  by  said  rules  for 
the  hearing  and  trial  of  causes  in  equity  generally  regularly 
placed  on  the  equity  trial  calendar  for  hearing. 

Fifth.  That  the  inventory  of  the  property,  the  value 
whereof  is  in  dispute  in  said  cause,  heretofore  agreed  upon, 
shall  be,  before  the  trial  of  said  cause,  identified  by  the  sig- 


1098  SUITS  IN    EQUITY. 

natures  of  the  respective  parties  or  their  solicitors  and  the 
same,  so  identified,  filed  with  the  record  of  said  cause.  That 
said  inventory  shall,  for  all  purposes  of  the  trial  thereof,  be 
held  to  embrace  and  include  all  of  the  property  in  dispute 
between  the  parties  and  that  no  claim  shall  be  made  on  be- 
half of  the  complainant  of  any  liability  upon  the  part  of  the 
defendant  herein  to  account  for  or  pay  the  value  of  any 
property  other  than  that  inventoried  as  aforesaid. 

Sixth.  That  the  final  decree  rendered  herein  shall  ascer- 
tain the  amount  in  which  the  defendant  shall  account  to  and 
pay  the  complainant  herein  and  that  the  complainant  is 
entitled  to  a  lien  therefor  on  the  premises  described  in  the 
pleadings.  That  said  decree  may  further  provide,  in  the 
event  the  defendant  shall  fail  to  satisfy  the  same  and  ac- 
count for  and  pay  to  complainant  the  amount  therein  ad- 
judged and  determined  within  the  time  to  be  fixed  by  said 
decree,  that  said  lien  may  be  foreclosed  in  the  ordinary 
manner  agreeably  to  the  rules,  practices  and  procedure  of 
equity  in  similar  cases. 

(Signatures  of  Parties  by  Attorneys.) 


No.  727. 

Stipulation  Amending  Bill. 
[Caption.] 

It  is  hereby  stipulated  between  the  undersigned  that  para- 
graph 12  of  the  bill  is  hereby  amended  by  changing  the 
period  at  the  end  of  the  paragraph,  on  line  22,  page  15,  into 
a  comma,  and  adding  the  following: 

"such  fare  being  less  than  a  reasonable  rate  and  less  than 
the  value  of  the  service  rendered."  A.  B., 

Solicitor  for  PlaintiflF. 
C.  D., 
Solicitor  for  Defendant. 


PROCEEDINGS   BEFORE  A    MASTER.  1099 

PROCEEDINGS  BEFORE  A  MASTER. (1) 

No.  728. 

Motion  for  Appointment  of  Master  to  Report  on  Evidence. 

[Caption.} 

Now  comes  the  plaintiff  and  moves  the  court  to  appoint  a 
master  in  said  cause  to  examine  the  testimony  taken  and  to 
be  taken  therein,  and  to  make  therefrom  a  special  finding  of 
facts  upon  the  issues  joined  between  the  parties,  and  to  re- 
port the  same  and  his  conclusions  of  law  thereon  to  the 
court,  the  ground  of  said  motion  being  that  said  testimony 
is  very  voluminous,  requiring  much  time  for  its  considera- 
tion. W.  W.,  its  Attorney. 

(1)  Equity  Rules  59  to  68  relate  to  masters.  The  spirit  of  the 
new  rules  is  made  clear  in  the  opening  sentence  of  Rule  59,  from  which 
it  appears  that  masters  will  no  longer  feature  a  case  in  equity. 


No.  729. 

Motion  to  Refer  Intervention  to  Special  Master. 

[Caption.] 

Now  comes  B.  F.,  intervener,  by  counsel,  and  moves  the 
honorable  court  that  his  petition  of  intervention  filed  in  the 
papers  of  this  cause  be  referred  in  all  things  to  J.  N.,  Esq., 
master  in  chancery,  for  his  examination  and  report;  and 
intervener  with  respect  so  prays.  D.  H., 

Attorney  for  B.  F. 


No.  730. 

Order  Appointing  Master  to  Report  on  Evidence.  (1) 

[Caption.] 

On  motion  of  the  plaintiff  for  the  appointment  of  a  mas- 
ter in  said  cause,  it  is  ordered  that  B.  R.,  because  of  his 
experience  in  matters  of  accounting,  be  and  he  is  hereby  ap- 
pointed special  master  in  said  cause  to  examine  the  record 


1100  SUITS  IN   EQUITY. 

and  the  evidence  now  on  file  or  hereafter  taken  therein,  and 
to  make  a  special  finding  of  fact  on  the  issues  joined  be- 
tween the  parties  and  to  report  the  same  to  the  court  and 
his  conclusions  of  law  thereon. 

Done  at  chambers  at  the  city  of  ,  this  day  of 

.  E.  S.,  Judge. 

(1)  Clerks  of  district  courts  can  not  be  appointed  masters  except 
for  special  cuase  named  in  the  order.  Act  of  March  3,  1879,  20  Stat,  at 
410,  brought  forward  in  Judicial  Code,  Sec.  68.  See  Fischer  v.  Hayes, 
22  Fed.  92;  Briggs  v.  Neal,  120  Fed.  224;  Quinton  v.  Neville,  154  Fed.  432. 

If  the  order  does  not  assign  special  reason  his  acts  are  valid.  North- 
western Mut.  Life  Ins.  Co.  v.  Seaman,  80  Fed.  357;  s.  c.  on  appeal, 
86  Fed.  493. 


No.  731. 

Order  Appointing  Special  Master  to  Report  on  Strike.  (1) 

[Caption.] 

In  this  cause  it  is  ordered  that  B.  R.  be  appointed  Special 
Master  to  hear  proof  and   report   whether: 

First.  The  strike  complained  of  in  the  bill   is  over;  and 
Second.  Whether   there   has  been   any   settlement   of  this 
suit  or  the  disputed  matter  involved  so  that  the  bill  should 
now  be  dismissed,  and  if  so,  at  whose  costs, 

(1)  Note  the  language  of  Equity  Rule  59,  as  to  the  appointment 
of  masters. 


No.  732. 

Order  Appointing  Master  to  Determine  Amount  Due. 
[Caption.] 

This  cause  came  on  this  day  for  orders,  whereupon  it 
was  adjudged  and  decreed  that  it  be  referred  to  J-  B.  as 
Special  Master,  who  will  ascertain  from  the  proof  now  on 
file  and  any  that  may  be  submitted: 

First.  The  amount  now  due  complainant  by  the  defend- 
ants or  either  of  them. 


PROCEEDINGS   BEFORE   A    MASTER.  1101 

Second.  The  amount  that  the  defendants  have  paid  the 
complainant   association   and   on   what   account. 

Third.  The  amount  of  fee  proper  to  be  paid  the  com- 
plainants  for   services   herein. 


No.  733. 

Stipulation  as  to  Special  Master. 

[^Caption. "l 

In  this  cause,  counsel  for  both  parties  hereby  agree  and 
request  that  a  special  master  be  appointed  immediately,  to 
take  the  testimony  and  report  the  findings  of  fact  and  con- 
clusions of  law  to  the  court;  they  further  agree  that  an 
exceptional  condition  has  arisen  calling  for  the  the  ap- 
pointment of  such  master;  namely,  that  the  District  Judge 
is  about  to  enter  upon  a  term  of  jury  trials,  and  cannot 
give  personal  attention  to  the  hearing  of  testimony  at  this 
time. 

(Date.)  A.   B., 

Attorney  for  Complainant. 
C.    D., 
Attorney  for   Defendant. 


No.  734. 

Order  Appointing  Special  Master. 
\^Captton.'] 

This  cause  coming  on  to  be  heard,  upon  motion  of  coun- 
sel for  complainant — counsel  for  both  parties  having  agreed 
thereto — it  is  hereby  ordered  that  John  F.  A.  Merrill, 
Esq.,  of  Portland,  within  said  District  be,  and  he  hereby  is, 
appointed  special  master  in  this  cause  to  take  the  testimony 
and  report  the  findings  of  fact  and  conclusions  of  law  to 
the  Court,  with  all  convenient  speed,  subject  to  exceptions 
according  to  the  usual  course  of  Chancery  Practice. 

This  order  is  made  upon  a  showing  that  an  exceptional 
condition   requires   such   order;  namely,   the  cause   is   shown 


1102  SUITS   IN    EQUITY. 

to  the  court  to  require  the  immediate  taking  of  testimony 
and  prompt  proceeding  with  the  cause;  and  the  District 
Judge  is  just  entering  upon  a  term  of  jury  trials,  and  can- 
not give  personal  attention  to  the  hearing  of  testimony  at 
this    time. 

By  the  Court, 
James   A.    Henley,    Clerk. 


No.  735. 

Order  Appointing  Special  Master  to  Hear  and  Report  on 
Certain  Claims. 

[Caption.] 

Now  on  this  day  comes  the  St.  Joseph  Gas  Company  and 
files  a  claim  against  the  Kaw  Gas  Company,  Kansas  Nat- 
ural Gas  Company  and  the  receivers  of  the  Kansas  Natural 
Gas   Company    for   damages    for   breach    of   contract. 

It  is  ordered  by  the  court  that  the  said  claim  be  and  the 
same  is  referred  to  Mr.  Wash  Adams  of  Kansas  City,  Mis- 
souri, as  special  master  to  take  the  testimony,  to  make  find- 
ings of  fact,  adopt  conclusions  of  law,  and  report  a  pro- 
posed decree  with  reference  thereto,  which  he  will  do  with 
all  deliberate  speed,  calling  to  his  aid,  if  he  deems  advisable, 
a  stenographer  to  the  end  that  the  testimony  may  be  taken 
and  transcribed  and  filed  in  lieu  of  depositions  taken  with 
all   statutory   formality. 

And  any  and  all  other  claims  filed  against  the  receivers 
herein  will  be,  if  filed  within  that  prescribed  time,  without 
'further  order  referred  to  him,  the  said  Mr.  Wash  Adams, 
under  like  terms  and  conditions  as  hereinbefore  set  forth, 
the  said  special  master  to  fix  the  time  and  place  of  hearing 
the  same  by  notice  through  the  United  States  mail  to  the 
parties  or  their  attorneys  having  an  interest  in  the  said 
subject  matter. 

It  is  further  ordered  that  the  said  St.  Joseph  Gas  Com- 
pany   pay    to    the    receivers    of   this    court    the    balance    ot 


PROCEEDINGS  BEFORE  A  MASTER.  1103 

$2,565.03;  that  the  same  be  paid  forthwith  to  the  receivers 
of  this  court,  and  that  they,  the  said  receivers,  will  deposit 
the  same  in  one  of  the  banks  to  be  selected  by  them  hereto- 
fore designated  and  said  amount  retained  in  said  bank  and 
in  no  event,  until  ordered  by  this  court,  transferred  to  the 
said  receivers  of  Montgomery  county,   Kansas. 

It  is  further  ordered  that  the  sum  of  $19,414.87  paid  by 
the  said  St.  Joseph  Gas  Company  to  the  receivers  herein 
this  January  30,  1914,  be  by  the  said  receivers  of  this 
court  retained  by  them  in  the  First  National  Bank  of  Kan- 
sas City,  Missouri,  and  be  not  transferred  to  the  receivers 
of    the    state    court    of    Montgomery   county,    Kansas. 

R.    X., 
Judge. 


No.  736. 

Order  Appointing  Master  in  Chancery  Pro  Hac  Vice. 

[Caption.] 

Solicitors  for  the  Complainant  and  the  Defendant  and 
Intervener  in  the  above  entitled  cause,  agreeing  thereto,  it  is 

Ordered,  that  Ben.  H.  Stone,  Esquire,  be,  and  he  is 
hereby  appointed  Master  in  Chancery  pro  hac  vice.  Said 
Master  is  directed  to  proceed  in  conformity  with  the  equity 
rules  of  the  United  States  Supreme  Court  having  relation 
thereto,  to  hear  evidence  and  seasonably  make  his  report 
thereon. 

E.   R.    M., 
United  States  District  Judge. 


No.  737. 

Oath  of  Special  Master. 

[Caption.] 

I,  C.  G.,  having  heretofore  been  appointed  Special  Master 
in  the  above-entitled  cause,  do  solemnly  swear  that  I  will 
faithfully  and   impartially  perform  my  duties  as  such  mas- 


1104  SUITS   IN    EQUITY. 

ter,  agreeable  to  the  order  of  the  court,  to  the  best  of  my 
abihty  and  understanding.     So  help  me  God.  C.   G. 

Sworn  to  before  me  and  signed  in  my  presence  this  

day  of  ,  1894.  B.  R., 

Clerk  of  District   Court  of  the  United  States 

[Seal.]  for  the  district  of  . 


No.  738. 

General  Notice  for  Proceedings  before  Master. 

To  X.   Y., 

Counsel   for  Plaintiff   [or,  Defendant], 

[Caption.] 

By   virtue   of   an   order   of   reference    in   the   above-stated 
case   I   do   hereby   appoint   to   consider   the   matters   thereby 

to   me   referred    Saturday,    the   day    of    ,    at    10 

o'clock   a.   m.,   at  my   office   in   the  building,  ,   at 

which  time  and  place  all  parties  concerned  are  to  attend. 

Dated,  day  of  ,  1894.  C.  G., 

Special  Master. 


No.  739. 

Master's  Warrant  or  Summons.  (1) 

District   Court   of  the  United   States   for  the  District 

of   . 

A.    B.,    Plaintiff,   ^ 

vs.  V  In    Equity. 

C.   D.,   Defendant.  ) 

To  A.  B.  and  CD.: 

In  pursuance  of  the  authority  contained  in  a  decretal  or 
der  made  in  this  cause  by  the  Hon.  J.  W.,  District  Judge, 
at   a   stated   term   of   this   court   held   at   the   United   State.* 

Court  House  in  the  city  of  ,  on  the  day  of  ■, 

ffA.  D.  ,  I.  B.  R.,  one  of  the  Masters  of  said  court,  6C 

hereby  summon  you,  A.  B.,  complainant,  and  C.  D.,  defend 


PROCEEDINGS    BEFORE   A    MASTER.  1105 

ant,  to  appear  before  me,  the  said  B.  R.,  at  my  office  at 
No.  . Broadway,  in  the  city  of  ,  in  the  Dis- 
trict of  ,  on  the  day  of  ,  A.  D.  ,  at  2 

o'clock  in  the  afternoon,  to  attend  a  hearing  before  me,  the 
said  Master,  of  the  matters  in  reference  in  the  said  cause 
to  be  had  by  virtue  of  the  decretal  order  aforesaid.  And 
hereof  fail  not  at  your  peril.  B.  R.,  Master. 

Dated  the  day  of  . 

Underwriting:  To  take  the  account  in  the  suit. 

B.  R.,   Master. 
(1)   See  Equity  Rule  60. 


No.  740. 

Order  to  Master  to  Report  Testimony. 

[Caption.] 

On  motion  of  complainant,  it  is  ordered  that  the  Master 
heretofore  appointed  in  said  case  do  report  the  testimony 
taken  on  which  his  said  report  was  made,  and  that  this 
order  take  effect  as  of  the  date  of  the  order  appointing  said 
Master.  And  the  action  of  Master  in  heretofore  filing  said 
evidence    is   hereby   affirmed. 


No.  741. 

Motion  before  Master  for  Order  Requiring  Defendant  to 
Submit  a  Report  in  Accounting. 

[Caption.] 

Now  come  the  complainants  by  their  counsel,  Mr.  John 
W.  Hill,  and  move  the  Master  for  an  order  requiring  the 
defendant  herein  to  prepare  and  file  its  report  under  the 
order  of  the  court  directing  an  accounting  in  said  case, 
which  report  shall  show  in  the  form  of  debtor  and  creditor 
the   following: 

1.  The  accounts  by  months,  beginning  August  21,  1902, 
and  continuing  to  February  18,  1913,  setting  forth  the  quan- 
tity of  material  in  infringement  of  the  Grant  patent  sued  on, 
directly   and   indirectly  manufactured   and   sold  by  the   de- 


1106  SUITS    IN    EQUITY. 

fendant  for  domestic  use  only  and  the  price  received,  clearly 
separating  in  the  account  the  rubber,  the  channel  and  the 
wire,  and  as  a  debit  against  the  same,  all  of  the  monthly 
expenses,  including  cost  of  material,  the  direct  cost  of  man- 
ufacture and  the  overhead  expense,  itemizing  or  classifying 
the  said  overhead  expense,  showing  in  what  class  or  for 
what  purpose  said  expense  was  made,  and  extending  bal- 
ance of  such  monthly  account  for  aid  in  totalling  the  same, 
and  finally  casting  up  the  grand  total  of  such  monthly  bal- 
ances. 

2.  In  the  same  manner  an  account  showing  the  sales 
within  the  territory  of  the  Northern  District  of  Illinois 
alone. 

3.  In  the  same  manner  an  account  showing  the  sales  to 
those,  or  in  the  territory  of  those,  whom  the  defendant 
claims  were  licensees  of  the  complainant,  such,  for  example, 
as  James  D.  Hurd,  The  Munford  Rubber  Tire  Company, 
and  all  others  whom  the  defendant  claims  were  licensees, 
separating  the  account  as  to  each  of  said  licensees,  that  the 
master  may  consider  them  in  making  up  his  account. 

4.  In  like  manner  an  account  of  the  manufacture  and 
sales   for  export,   that  is,   in   foreign  trade. 

5.  An  account  showing  the  total  poundage  and  the 
amount  received  for  the  Grant  tire  for  domestic  use  during 
the  year  beginning  August  28,  1903',  and  ending  August 
27,  1904,  during  which  time  the  defendant  claims  to  have 
had  a  license  from  the  complainants  under  said  patent. 

6.  A  similar  report  showing  the  total  poundage  and 
amount   received   for   foreign   trade. 

7.  Also  a  statement  showing  by  semi-annual  periods  of 
January  1st  and  July  1st,  the  total  volume  of  business  done 
by  the  defendant,  and  the  ratio  of  the  business  in  the 
Grant  tire  therewith,   and 

8.  The  total  overhead  expense  for  the  entire  business  of 
the  defendant  by  semi-annual  periods,  as  in  No.  7,  and 
showing  how  the  overhead  expense  and  the  various  amounts 
going  to  make  up  the  same  is  apportioned  to  the  business 
in   the   Grant   tire. 


PROCEEDINGS  BEFORE  A  MASTER.  1107 

No.  741a. 

Order  o£  the  Master  Thereon. 
[Caption.'] 

Paragraph  1  of  the  motion  is  overruled.     It  asks  that  the 
domestic  and  foreign  business  be  separated  and  that  monthly 
balances  be  furnished.     As  I  understand  it,   it  is  not  neces- 
sary for  complainants  in  making  out  their  case  to  segregate 
the    foreign    from    the    domestic    business;    that    if    such    a 
segregation  should  necessarily  be  made,  that  the  burden  of 
doing  so  rests  on  the  defendant.     It  appears  from  the  rec- 
ord that  the  balances  called   for   are   not  kept  monthly   on 
the  books,  and  I  am  of  the  opinion  that  defendant   should 
not  be  required  to  furnish  balances  monthly  as  it  would  en- 
tail a  heavy  expense  and  I  am  not  able  to  say  that  it  will 
be  of  material  service  to  the  complainants.     Counsel  for  the 
complainants  also  states  that  he  will  be  satisfied  with  semi- 
annual balances  as  they  are  kept  on  the  books  and  waives 
that   part  of  his   motion   which   asks    for  monthly  balances. 
The  Master  orders  that  in  lieu  of  the  information  asked 
in  paragraph  1  of  this  motion  that  the  defendant  furnish  as 
a  part  of  its  accounting  an  account  in  semi-annual  periods 
corresponding  with  the  books,  beginning  August   21,    1902, 
and    continuing    to    February    18,    1913,    setting    forth    the 
quantity    of   material    in    infringement    of   the    Grant    patent 
sued  on,   directly   and   indirectly  manufactured  and   sold   by 
the   defendant,  and  the  price  received,  clearly   separating  in 
the  account  the  rubber,  the  channel  and  the  wire,  and  as  a 
debit  against  the  same,  all  of  the  semi-annual  expenses,   in- 
cluding cost  of  material,  the  direct  cost  of  manufacture  and 
the    overhead    expenses,    itemizing    or    classifying    the    said 
overhead    expenses    as    they    are    itemized    and    classified    on 
the  books  of  the  defendant,  and  showing  in  what   class   or 
for  what  purpose  said  expenses  were  made,   and  extending 
the  balances  of  each  semi-annual  period  for  aid  in  totalling 
the    same,    and   finally    casting   up   the   grand    total   of   such 
semi-annual    balances. 


1108  SUITS   IN    EQUITY. 

To  which  ruling  of  the  Master  in  overruling  paragraph 
1   counsel  for  the  complainants  excepts. 

To  the  order  as  above  named  counsel  for  defendant  ex- 
cepts. 

Paragraph  2  will  be  overruled.  The  Master  is  of  the 
opinion  that  if  the  profits  are  to  be  limited  to  those  arising 
out  of  the  business  transacted  wholly  within  the  Northern 
District  of  Illinois,  the  burden  is  upon  the  defendant  to 
establish  that  position  and  that  it  is  not  necessary  that  the 
complainants  do  so  in  making  out  their  prima  facie  case 
on  this  accounting. 

To  which  ruling  of  the  Master  counsel  for  the  complain- 
ants   excepts. 

Paragraph  3  will  be  overruled.  The  Master  is  of  the 
opinion  that  if  anything  should  properly  be  deducted  from 
the  gross  profits  of  the  business  on  account  of  licenses  or 
business  with  licensees,  the  defendant  must  assume  the 
burden  on  this  question  and  that  it  is  not  necessary  for 
the  complainants   in  their  prima   facie  case  to  do  so. 

To  which  ruling  of  the  Master  counsel  for  the  complain- 
ants excepts. 

Paragraph  4  is  overruled  for  reasons  stated  in  reference 
to    paragraph    1. 

To  which  ruling  of  the  Master  counsel  for  the  complain- 
ants excepts. 

Paragraph  5  is  overruled  for  the  same  reasons  as  para- 
graph 4. 

To  which  ruling  of  the  Master  counsel  for  the  complain- 
ants excepts. 

Paragraph  6  is  overruled  for  the  same  reasQns  as  para- 
graph 4. 

To  which  ruling  of  the  Master  counsel  for  the  complain- 
ants  excepts. 

The  Master  sustains  the  motion  as  to  paragraphs  7  and  8. 

To  which  ruling  counsel   for  the   defendant  excepts. 

Further  proceedings  adjourned  to  October  29,   1913. 


PROCEEDINGS   BEFORE   A    MASTER.  1109 

No.  742. 

Affidavit  of  Defendant  Showing  Progress  of  Compiling  Report 
in  Accounting  before  Master. 

[Caption  and  Venue.] 

Giiy  E.  Norwood,  being  duly  sworn,  deposes  and  says 
that  he  is  Assistant  Treasurer  of  The  B.  F.  Goodrich  Com- 
pany, and  pursuant  to  an  order  of  the  Master,  dated  Chi- 
cago, September  29,  1913,  he  undertook,  on  behalf  of  The 
B.  F.  Goodrich  Company,  immediately  upon  receiving  a 
copy  of  said  order,  to  prepare  the  information  called  for 
by  the  order.  This  work  has  since  been  continuously  and 
diligently  prosecuted,  and  as  large  a  number  of  men  have 
been  employed  upon  this  work  as  is  consistent  with  the 
form  and  number  of  the  records.  The  several  departments 
dealing  with  said  records  have  been  called  upon  to  lend 
their  assistance  in  the  preparation  of  this  report,  with  the 
result  that  an  average  of  four  or  five  men  have  been  work- 
ing on  it  daily  during  the  business  hours  since  the  order 
was  received. 

Deponent  has  also  devoted  a  large  part  of  his  personal 
time  to  said  work.  The  nature  as  well  as  the  period  cov- 
ered by  these  records  necessitate  the  employment  of  expe- 
rienced  men,    familiar   with    those   particular    records. 

Notwithstanding  that  the  work  has  been  prosecuted  as 
above,  the  report  is  not  yet  in  shape  to  present,  nor  is  the 
deponent  able,  at  this  time,  to  present  any  part  of  the  re- 
port. Deponent  further  states  that  this  condition  is  entirely 
beyond  his  control  and  that  he  knows  of  no  way  of  arriv- 
ing at  the  final  result  other  than  by  the  method  he  is  pur- 
suing. Guy  E.   Norwood. 

Sworn  to  and  subscribed  this  24th  day  of  Oct.  A.  D. 
1913,  before  me,  a  Notary  Public  in  and  for  said  County 
and  State.  Eugene  C.   Bard, 

Notary   Public. 


1110  SUITS   IN    EQUITY. 

No.  743. 

Stipulation  for  Taking  Depositions  in  other  Jurisdictions  for 
Use  before  Master  in  Accounting. 

[Caption.] 

It  is  stipulated  and  agreed,  by  and  between  the  parties 
hereto,  the  depositions  may  be  taken  and  proofs  put  in,  by 
either  side,  at  Akron,  Ohio,  and  New  York,  N.  Y.,  before 
the  Master,  C.  B,  Morrison,  Esq.,  with  the  same  power, 
force  and  effect  as  though  taken  and  offered  in  the  North- 
ern District  of  Ilhnois  and  all  rulings,  orders  and  direc- 
tions of  said  Master,  made  in  the  taking  of  depositions  and 
proofs  at  said  Akron  and  New  York,  shall  have  the  same 
force  and  effect  as  though  made  in  the  said  Northern  Dis- 
trict of  Illinois, 

Further  stipulated  that  in  addition  to  the  Master's  com- 
pensation he  shall  also  be  paid  the  extra  expenses  incurred 
by  him  by  reason  of  the  taking  of  testimony  in  Akron  and 
New  York  rather  than  at  his  office  in  Chicago,  and  such 
extra  expenses  shall  be  added  to  the  compensation  allowed 
to  the  Master  and  be  treated  in  the  taxing  costs  and  other- 
wise as  a  part  of  the  compensation  of  the  Master. 

No.  744. 

Notice  during  Proceedings  before  Master  of  Motion  in  Dis- 
trict Court  for  Order  Requiring  Witness  before  Master  to 
Testify. 

Mr.  Stapleton:  Counsel  for  plaintiffs  now  give  notice 
that  they  will  appear  before  the  United  States  District 
Judge  at  Cleveland  in  this  District  tomorrow  morning  at 
10  o'clock  and  there  request  an  order  directing  the  witness 
to  answer,  and  in  default  that  he  be  punished  for  contempt 
of  court;  and  this  application  will  be  made  on  affidavits  dis- 
closing the  condition  of  affairs  and  the  refusals  of  the  wit- 
ness to  answer.  In  the  meantime,  we  ask  an  adjournment 
until  such  time  as  we  can  get  a  ruling  from  the  court. 


PROCEEDINGS   BEFORE   A    MASTER.  1111 

The  Master:  I  will  adjourn  until  2  o'clock  tomorrow 
and  if  the  court  has  not  passed  upon  it  by  that  time,  I  will 
then   make    a    further    adjournment. 


No.  745. 

Notice  during  Proceedings  before  Master  of  Motion  in  Dis- 
trict Court  for  Order  Requiring  Production  of  Books  be- 
fore a  Master. 

Mr.  Stapleton:  We  give  notice  on  the  record  that  we 
will  bring-  this  question  of  the  refusal  to  produce  the  books 
in  accordance  with  the  order  of  the  master  before  the  Dis- 
trict Judge  of  the  Northern  District  of  Ohio  at  his  office  in 
the  postoffice  building  in  the  City  of  Cleveland,  Ohio,  on 
Monday,  the  9th  day  of  March,  1914,  at  the  opening  of  the 
court  on  that  day  or  as  soon  thereafter  as  counsel  can  be 
heard  and  ask  for  an  order  directing  the  production  of  the 
books  and  records  called  for  and  that  in  default  of  their 
production  that  defendant  and  its  officers  be  punished  for 
contempt   of   court. 


No.  746. 

Notice  of  Motion  to  Take  Surrebuttal  Testimony  before 
Master  in  Accounting,  and  Objections  to  Motion. 

Mr.  Hibben :  Counsel  for  defendant  now  gives  notice 
on  the  record  that  promptly  after  the  stenographic  notes 
of  this  session  are  written  out  he  will  make  a  motion  be- 
before  the  Master  for  leave  to  take  surrebuttal  proofs  in 
answer  to  certain  testimony  of  the  witnesses  Wechsler,  Es- 
querre,  Dennis  and  Seaman,  and  to  the  Exhibit  Wechsler 
Statement,  which  testimony  will  be  specially  specified  in  the 
motion  papers. 


1112  SUITS  IN   EQUITY. 

No.  747. 

Motion  to  Take  Surrebuttal  Testimony  before  Master  in 

Accounting. 
[Caption.] 

Now  comes  the  defendant  by  S.  E.  Hibben,  its  solici- 
tor, and  offers  to  prove,  and  moves  the  Master  for  leave 
to  take  surrebuttal  proofs  to  prove,  the  following:  (Enu- 
merate.) 

The  B.  F.  Goodrich  Company, 
By   S.   E.   HiBBEN,   its  Solicitor. 


No.  748. 

Objections  to  the  Above  Motion. 

[Caption.] 

Plaintiffs  object  to  the  granting-  of  defendant's  motion 
and  protest  against  its  being  granted  permission  to  take 
surrebuttal  proofs  as  proposed  in  its  motion  upon  the  fol- 
lowing  grounds : — 

1.  That  defendant  has  already  closed  its  proofs  and  that 
the  motion,  if  allowed,  amounts  to  permitting  defendant  to 
reopen  its  case  and  would  thus  be  unfair  to  plaintiffs. 

•  2.  That  no  grounds  are  stated  as  a  basis  for  the  motion 
or  for  permitting  surrebuttal  proofs. 

3.  That  it  does  not  appear  that  defendant  cannot  safely 
proceed  to   argument   without  the   proofs   proposed. 

4.  That  there  is  no  foundation  laid  and  no  reason  given 
for  the  granting  of  the  motion  or  for  the  introduction  of 
the  proposed  proofs. 

5.  That  the  proposed  surrebuttal  proofs  would  not  assist 
the  master  or  the  court  in  fathoming  the  intricacies,  theo- 
ries, or  speculations  involved  in  the  third  account,  nor  ex- 
plain the  contradictions  between  said  third  account  and  the 
first  and  second  account,  nor  explain  defendant's  contradic- 
tory testimony  respecting  the  correctness  of  all  three  ac- 
counts. 


PROCEEniXGS    BEFORE    A    MASTER.  1113 

Plaintiffs  protest  against  and  object  to  the  granting  of 
the  motion  and  to  the  introduction  of  the  proofs  proposed 
should  the  same  be  granted,  specifically  as  follows:  (Enu- 
merate.) 

Charles   W.    Stapleton, 
Solicitor   for   Plaintiffs. 


No.  749. 

Interrogatories  ( 1 )  for  Examination  of  Witnesses  before  a 

Master. 

[Caption.] 

Interrogatories  to  be  exhibited  on  the  part  of  the  said 
plaintiff  for  the  examination  of  witnesses  to  be  produced, 
sworn,  and  examined  before  C.  G.,  one  of  the  masters  of 
said  district  court,  pursuant  to  a  decretal  order  made  and 
entered   in  this  cause  on  the  day  of  ,    1894. 

First  Int.  State  if  you  know  the  parties,  plaintiff  and 
defendant,  in  tlie  above-entitled  cause,  or  either  for  any), 
and  which  of  them,  and  how  long  have  you  known  them 
respectively,  or  such  of  them  as  you  do  know ;  declare  the 
truth  and  your  utmost  knowledge,  remembrance,  and  be- 
lief herein. 

[Continue  zvith  other  interrogatories,  and  for  the  last 
one  say:] 

Int.     Do  you  know,  or  can  you  set  forth,  any  other 

matter,  or  tiling,  which  may  be  a  benefit  or  advantage  to 
the  parties  at  issue  in  this  cause,  or  either  of  them ;  or  that 
may  be  material  to  the  subject  of  this  your  examination, 
or  the  matters  in  question  in  this  cause?  If  so,  please  state 
the  same  fully  and  at  large  in  your  answer. 

(1)   See  Equity  Rules  62  and  65. 


1114  SUITS    IN    EQUITY. 

No.  750. 

Interrogatories(l)    in  Accordance  with   Equity  Rule   58. 
[Caption.] 

Interrogatories  propounded  by  plaintiff,  and  to  be  an- 
swered by  each  of  the  defendants,  Fred  Hamilton,  Bushrod 
J.  Milton,  and  James  S.  Cruse. 

Interrogatory  No.  1.  How  many  head  of  cattle  were 
purchased  by  the  defendants  in  this  action,  at  the  Union 
Stock  Yards,  Kansas  City,  Missouri,  on  the  28th  day  of 
December,     1914? 

Interrogatory  No.  2.  If  you  shall  say  in  answer  to  the 
foregoing  interrogatory  that  defendants  purchased  176  head 
of  cattle,  or  any  other  number  of  head  of  cattle,  at  the  time 
and  place  mentioned  in  Interrogatory  No.  1  state  the  name 
of  the  person  from  whom  defendants  made  purchase. 

Interrogatory  No.  3.  Were  all  of  the  cattle  so  pur- 
chased, transported  from  Kansas  City,  Missouri,  to  Owens- 
boro,  Kentucky,  and  received  by  the  defendants  in  said  ac- 
tion,  at   Owensboro,    Kentucky? 

If  you  shall  say  in  answer  to  this  interrogatory  that  all 
of  the  cattle  purchased  by  the  defendants  in  this  action,  at 
Kansas  City,  Missouri,  on  December  28,  1914,  were  not  re- 
ceived in  Owensboro,  Kentucky,  then  say  how  many  were 
received. 

Interrogatory  No.  4.  State  on  what  date  the  cattle  that 
were  purchased  on  December  28,  1914,  in  Kansas  City, 
Missouri,  arrived  in  Owensboro,  Kentucky. 

Interrogatory  No.  5.  How  many  of  the  cattle  so  pur- 
chased by  the  defendants,  in  Kansas  City,  Missouri,  on  the 
28th  day  of  December,  1914,  are  now  in  the  possession  of 
the    defendants? 

And  if  you  shall  state  that  the  cattle  so  purchased  by 
the  defendants  in  this  action,  in  Kansas  City,  Missouri,  on 
the  28th  day  of  December,   1914,  are  now  in  the  possession 


PROCEEDINGS   BEFORE   A    MASTER.  1115 

of  the  defendants,  state  in  what  particular  and  specific  place 
these  cattle  may  be  found. 

Interrogatory  No.  6.  Were  the  cattle  so  purchased  by 
the  defendants  in  this  action,  in  Kansas  City,  Missouri,  on 
December  28,  1914,  in  the  possession  of  the  defendants  on 
January  7,   1915? 

Interrogatory  No.  7.  If  you  say  that  said  cattle  were 
in  the  possession  of  the  defendants  on  January  7,  1915, 
state  in  what  particular  place  in  or  near  Owensboro,  Ken- 
tucky, they  were.  If  you  shall  say  in  answer  to  the  last 
interrogatory  that  the  cattle  so  purchased  in  Kansas  City, 
Missouri,  on  the  28th  day  of  December,  1914,  were  in  the 
possession  of-  the  defendants  on  the  7th  day  of  January, 
1915,  in  the  cattle  stables  or  cattle  barns  or  barn  on  the 
property  of  the  Green  River  Distilling  Company,  then  say 
in  which  part  of  the  barn  or  stables  these  cattle  were  lo- 
cated. 

Interrogatory  No.  8.  State  whether  or  not  the  defend- 
ants in  this  action  owned  or  had  any  cattle  in  their  posses- 
sion prior  to  the  28th  day  of  December,   1914. 

If  you  shall  say  that  they  had  cattle  in  their  posses- 
sion, state  how  many,  and  where  these  cattle  were  located. 

Interrogatory  No.  9.  State  whether  or  not  any  of  the 
cattle  purchased  by  the  defendants  in  this  action,  in  Kan- 
sas City,  Missouri,  on  December  28,  1910,  were  ever  inter- 
mingled or  mixed  with  any  other  cattle  owned  by  the  de- 
fendants. 

Interrogatory  No.  10.  If  you  shall  say  that  you  have 
not  got  in  your  possession  now  all  of  the  cattle  purchased 
by  the  defendants  in  this  action  in  Kansas  City,  Missouri, 
on  December  28,  1914,  then  say  what  became  of  those  cattle 
which    you    have    not    now    in    your    possession. 

E.   B.   Anderson, 

and 
C.    M.    Finn, 
Attorneys    for    Plaintiff. 


/ 


1116  SUITS    IN    EQUITY. 

Note:      Each    of   the    defendants,   Fred    Hamilton,    Bush- 
rod  J.   Milton,   and   James   S.    Cruse,    will  answer  the   fore- , 
going   interrogatories. 

(1)  See  Federal  Equity  Rule  58;  Simkins,  A  Federal  Suit  in  Equity, 
pp.  292-294;  Hopkins'  Federal  Equity  Rules,  2d  ed.,  pp.  222,  et  seq.; 
Foster's  Fed.  Prac,  5th  ed.,  Sec.  348. 

In  Luten  v.  Camp,  221  Fed.  424,  it  was  held  that  under  new  Rule 
58  the  interrogatories  are  not  a  part  of  the  pleadings  as  they  were 
under  the  former  practice,  and  that  hence  a  waiver  of  answer  under 
oath  does  not  now  relieve  from  the  duty  of  answering  interrogatories. 

At  page  427  the  court  says:  "It  is  apparent  that,  in  furtherance  of 
the  purpose  of  simplifying  the  pleadings  and  of  expediting  the  ascer- 
tainment of  the  facts  and  final  hearing,  the  purpose  of  Rule  58  was  to 
provide  for  a  simple  practice  equally  open  to  either  party  for  inter- 
rogating the  other  without  such  interrogatories  becoming  part  of  the 
pleadings." 

In  J.  H.  Day  Co.  v.  Mountain  City  Mill  Co.,  225  Fed.  622,  the 
court  says  at  page  623:  "After  careful  consideration  I  think  it  clear 
that  the  58th  Equity  Rule  was  intended  merely  to  change  the  pro- 
cedure in  reference  to  obtaining  discovery  and  to  extend  this  right 
to  a  defendant  as  well  as  to  a  plaintiff,  and  was  not  intended  to  change 
the  long-established  rule  in  reference  to  the  subject-matter  of  such 
discovery  or  to  extend  such  right  in  favor  of  either  party  beyond  the 
matters  relating  to  his  own  ground  of  action  or  defense,  respectively, 
and  enable  him  to  obtain  discovery  in  reference  to  matters  relating 
solely  to  the  ground  of  action  or  defense  of  the  other  party.  In  other' 
words,  under  this  rule  the  plaintiff's  right  of  discovery  extends  only 
to  facts  resting  in  the  knowledge  of  the  defendant  or  documents  in 
his  possession  material  to  the  support  of  the  plaintiff's  case;  and  the 
defendant's  correlative  right  of  discovery,  only  to  facts  and  matters 
material  to  his  defense;  and  neither  is  entitled  to  discovery  of  an 
inquisitional  character  as  to  the  ground  of  action  or  defense  of  the 
other.  Further,  any  disclosure  may  be  limited  to  material  facts,  and 
does  not  extend  to  evidence  or  facts  merely  tending  to  prove  the 
material  facts." 

Upheld  in  F.  Speidel  Co.  v.  N.  Barstow  Co.,  232  Fed.  617,  in  which 
the  court  says  at  page  618,  that  the  purpose  of  the  rule  is  to  enable 
a  party  to  establish  his  own  case  rather  than  to  seek  information  as 
to  the  evidence  or  witnesses  of  the  other  party.  The  same  rulings  are 
found  in  Wolcott  v.  Natl.  Electric  Signaling  Co.,  235  Fed.  224. 

In  Batdorf  v.  Sattley  Coin  Handling  Machine  Co.,  241  Fed.  925,  the 
court  says  at  page  926:  "Equity  Rule  58  does  not  warrant  the  court 
in  requiring  answers  which  would  give  no  more  than  an  opinion,  or 


PROCEEDINGS    BEFORE    A    MASTER.  1117 

no  more  than  the  evidence  intended  to  be  relied  on  in  the  support 
or  defense  of  the  cause;  but  if  the  answer  would  disclose  a  material 
fact  or  document,  an  interrogatory  should  not  be  denied  simply  be- 
cause it  would,  in  disclosing  the  material  fact  or  document,  require 
an  expression  of  opinion,  the  disclosure  of  some  of  the  evidence  on 
which  the  party  interrogated  would  rely  at  the  trial,  or  the  giving  of 
other  information  which,  standing  alone  could  not  be  required."         ^ 

At  page  928  the  court  lists  the  cases  in  which  Rule  58  has  been 
considered  and  says:  "But  these  decisions  are  not  entirely  in  harmony. 
I  am  in  favor  of  applying  the  rule  in  such  a  manner  as  to  simplify 
as  far  as  possible,  not  only  the  issues  of  the  cause,  but  also  the  testi- 
mony either  in  behalf  or  in  defense  of  the  cause." 

In  Pressed  Steel  Car  Co.  v.  U.  P.  Ry.  Co.,  241  Fed.  964,  at  page  966, 
the  court  says:  "As  a  result  (of  Rule  58  and  Rule  29)  the  proper 
practice  in  a  bill  of  discovery  is  now  as  follows:  The  plaintiff  will 
plead  those  facts  which  entitle  him  to  a  discovery  from  the  defendant, 
and  will  annex  such  interrogatories  as  he  wishes  the  defendant  to 
answer.  If  the  defendant  does  not  dispute  the  plaintiff's  right  to  some 
discovery,  but  objects  to  some  or  all  of  the  actual  interrogatories 
annexed  to  the  bill,  he  will  make  those  objections  under  Rule  58,  and 


bring  them  on  for  hearing  before  the  judge.  Me  is  not  subject  to  the 
rule  that  by  answering  one  he  must  answer  all.  If,  on  the  other 
hand,  he  disputes  the  plaintiff's  right  to  any  discovery,  he  will  plead 
in  an  answer  such  facts  as  he  deems  apposite,  and  obtain  from  the 
court,  under  Rule  58,  an  enlargement  of  his  time  to  answer  the  inter- 
rogatories until  the  plaintiff's  right  to  discovery  is  established."  And 
at  page  967,  "the  plaintiff  will  have  leave  to  frame  and  keep  reframing 
interrogatories  until  it  has  extracted  from  the  defendant  all  the  in- 
formation which  it  possesses:  Much  jhe  most  convenient  way_wpuld^ 
be  f  orthe_  parties  ^toagree  upon  a  master  and~anowTfie~'plaintiff  an 
oral  examination.  TKis,  howeveF,  1  can  not  compeT;  but  the  same 
result  may  probably  be  obtained,  though  it  must  be  confessed  with 
the  maximum  of  expense  in  time  and  labor,  by  allowing  interroga- 
tories to  be  renewed  as  often  as  justice  requires." 

In  Marquette  Mfg.  Co.  v.  Oglesby  Coal  Co.,  247  Fed.  351,  the  court 
reviews  the  cases  dealing  with  phases  of  Rule  58,  and  finds  that  dis- 
covery may  not  be  had  of  the  evidence,  or  of  such  matters  as  tend  to 
criminate,  or  of  a  trade  secret,  or  which  would  be  against  public 
policy  or  professional  privilege;  also  that  it  was  not  the  purpose  to 
compel  discovery,  by  plaintiff,  of  the  particulars  of  his  own  cause  of 
action,  where  such  particulars  do  not  relate  to  any  pleaded  defense, 
or  Jlo  compel  the  defendant  to  disclose  facts  material  only  to  his 
defense. 


1118  SUITS    IX    EQUITY, 

No.  751. 

Report  of  Special  Master.  (1) 
[Caption.] 

To  the  Honorable  Judges  of  said  Court: 

The  undersigned,  this  day  appointed  Special  Master  in 
the  above  stated  cause  to  report  to  the  court  whether  or 
not  the  strike  of  May  20,  1901,  referred  to  in  the  bill  of 
complaint  herein,  is  ended,  and  whether  the  questions  in 
controversy  which  brought  about  said  strike  have  been  ad- 
justed,  respectfully   submits   the   following   report: 

I  have  taken  the  testimony  of  several  witnesses,  includ- 
ing the  defendant,  C.  D.,  and  of  the  manag-er  of  said  com- 
plainant company  and  report  the  following: 

First.  That  all,  except  two  or  three  of  the  men  who  went 
out  from  the  factory  of  complainant  on  the  20th  day  of 
May,  1901,  have  returned  to  work,  and  are  now  at  work  in 
said  factory;  that  said  return  to  work  was  voluntary  on 
the  part  of  said  employees  and  without  any  inducement 
offered  by  complainant's  officers,  or  agents,  except  the  state- 
ment that  they  were  at  liberty  to  return  to  work,  and  that 
said   strike  of   May   20,    1901,   is   over. 

Second.  I  find  that  there  has  been  no  adjustment,  or  set- 
tlement of  the  controversy  which  was  the  immediate  cause 
of  said  strike,  but  that  said  strikers  returned  to  work  and 
are  now  at  work  upon  ^  the  same  terms  as  to  hours  and 
wages   as   prevailed  before   the   strike. 

The  testimony  taken  upon  the  reference  is  filed   in  cause 

No.  .  Respectfully   submitted, 

A.   B., 

Dated  ,  Special   Master, 

(1)  See  Equity  Rule  61. 


PROCEEDINGS   BEFORE   A    MASTER.  1119 

No.  752. 

Master's  Report,  (1) 
[Caption.] 

To   the   Honorable   Judges,    etc. :  \. 

In   pursuance   of   a    decretal    order   made   and    entered    in 

this  cause,  and  bearing  date  of  the  day  of  ,   1894, 

at   a   stated   term   of   this   court,   held    at    [place   of  holding 

cottrt],  in  the  city  of  ,  in  the  said  district,  by  which  it 

was  referred  to  C.   G.,  of  ,  one  of  the  masters  of  this 

court,  to  take  and  state  an  account  of  [according  to  the 
decretal  order]. 

I,  C.  G.,  a  master  in  said  court,  do  respectfully  report 
that  I  have  proceeded  to  investigate  the  matters  so  referred 
to  me,  and  that  pursuant  to  a  summons  duly  issued,  I  have 
been  attended  by  the  parties,  plaintiff  and  defendant,  and 
their  respective  counsel  in  the  above  cause  [or  as  the  fact 
may  be],  and  that,  after  taking  due  proofs,  I  find  and  re- 
port  that    [here  set  forth   the  findings  of   the  master]. 

I  do,  therefore,  respectfully  report  that  the  said  defend- 
ant should  be  decreed  to  pay  the  said  plaintiff  the  sum  of 
• dollars,  besides  costs  to  be  taxed. 

I  respectfully  refer  to  schedules  A,  B,  C,  hereto  annexed, 
as   making   a   part   of   my   report. 

All   of    which    is   respectfully    submitted. 

Dated  .  C.   G., 


Master. 


(1)   See  Equity  Rule  61. 


No.  753. 

Report  of  Master — Introduction. 

(Another  Form.) 
[Caption.] 
To    the    Honorable    Judge    of    the    United    States    District 
Court  for  the  District  of  Maine : 
The  undersigned,   J.   A.   M.,   who   was  appointed   Master 
in  the  above  entitled  cause  September  12,  1913,  to  hear  and 


1120  SUITS  IN   EQUITY. 

report  to  the  Honorable  Court  his  findings  of  fact  and  con- 
clusions of  law  in  the  above  entitled  cause,  respectfully  re- 
ports that  on  the  24th  of  September,  1913,  and  on  the  two 
following  days,  he  heard  the  evidence  introduced  by  the  par- 
ties hereto  and  also  the  arguments  for  the  complainant  and 
for  the  respondent,  and  he  respectfully  submits  the  follow- 
ing report  containing  the  findings  of  fact  and  the  conclu- 
sions of  law  found  by  him,  which  he  respectively  presents 
as  his  report  as  Master  in  the  above  entitled  cause.  In 
addition  the  said  Master  also  files  with  his  said  report  a 
report  on  the  evidence  taken  out  before  him  and  also  the 
argument   of   counsel. 

Respectfully  submitted, 

J.   A.    M., 
February  3,   1914.  Master. 


No.  754. 

Notice  Accompanying  Draft  of  Master's  Report. 

[Caption.] 

Messrs.   X.   &  X., 

Solicitors  for    Plaintiflf, 
and 

Messrs.   Y.   &  Y., 

Solicitors  for  Defendant. 

Sirs :  You  are  hereby  notified  that  I  have  prepared  the 
draft  of  my  report  upon  the  matters  referred  to  me  as  mas- 
ter, by  the  interlocutory  decree  herein,  dated  the  day 

of  ,  and  that  a  copy  of  such  draft  report  accompanies 

and  is  annexed  to  this  notice,  and  is  herewith  served  upon 
you;  you  are  also  hereby  notified  that  I  shall  sign  and  file 
said  draft  report  as  my  report  herein,  unless  alterations  are 
made  by  me  therein,  upon  suggestions  of  counsel   for  either 

party  hereto,  and  that  I  appoint  the  day  of  ,  at 

my  office,   No. street,   in   the  city  of  ,  at   11 

o'clock  in  the  forencwn  of  said  day,  for  counsel  for  either 


PROCEEDINGS   BEFORE   A    MASTER.  1121 

party  hereto  to  present  to  me  any  suggestions  of  amend- 
ments to  or  alterations  of  said  draft  report,  and  to  file  with 
me  written  objections  or  exceptions  thereto,  if  any  they 
Iiave   to   the   same. 

Yours,   etc.,  C.    G., 


Master. 


Dated    at 


^o.  755. 

Exceptions  to  Master's   Report.(l) 

[Caption.] 

Exceptions  taken  by  the  plaintiff  [or,  defendant]  to  the 
report  made  herein  by  C.  G.,  one  of  the  masters  of  this 
court,  to  whom  this  cause  was  referred  by  an  order  of  this 
court  made  and  entered  on  the  day  of  ,   1894. 

First  Exception :  For  that  the  said  master,  in  his  said 
report,  etc.  [state  the  objection],  whereas  the  said  master 
should  have,  etc.  [state  zvhat  it  is  claimed  ought  to  have 
been   reported] . 

Second   Exception :    For  that,   etc.  R.    X., 

Solicitor  for,  etc. 

(1)  See  Equity  Rule  66;  Decker  v.  Smith,  225  Fed.  776;  Shef.  & 
Bin  Ry.  Co.  v.  Gordon,  151  U.  S.  285,  38  L.  Ed.  164. 


No.  756. 

Exceptions  to  Report  of  Special  Master. 

[Caption.] 

For  defendants  it  is  urged,  for  exception  to  the  said  re- 
port of   Special   Master: 

First.  That  it  assumes  that  there  is  anything  due  com- 
plainant on  the  obligations  of  defendants,  because  those  ob- 
ligations show  on  their  face  a  reservation  of  usurious  in- 
terest. This  usury  is  condemned  both  by  the  laws  of  Ten- 
nessee and  Alabama,  and  in  Tennessee  avoids  the  contract 
and  forfeits  the  principal.  The  evidence  shows  that  the 
obligations  are  Tennessee  contracts. 


1122  SUITS   IN    EQUITY. 

Second.  The  evidence  shows  that  the  interest  allowed  by 
the  Special  Master  is  usurious,  and  binds  neither  of  the  de- 
fendants. 

Third.  C.  D.  had  no  power  to  make  any  contract  as  to 
the  stock  in  company  of  complainants,  and  her  property 
cannot  be  charged  for  the  same,  she  being  a  married  woman 
when  this  contract  was  made. 

Fourth.  The  Special  Master,  if  he  is  permitted  to  allow 
interest  at  all  on  the  principal,  cannot  allow  beyond  6  per 
cent,  per  annum,  and  without  rests.  He  has  allowed  inter- 
est at  the  rates  claimed  by   complainant,   and  this   is  error. 

Fifth.  Defendants  prove  that  on  the  loan  one  thousand 
dollars  were  paid.  He  has  not  yielded  to  this  proof,  and 
has  not   allowed   that   credit. 

Sixth.  C.  D.  cannot  be  charged  with  interest,  premiums,! 
fines  or  dues  on  the  stock.  There  is  no  evidence  that  she 
ever  applied  for  stock  in  complainant,  and  if  she  did  it  was 
a  contract  she  was  incapable  of  making,  and  is  not  bound 
by    it. 

Seventh.  The  Master  cannot  charge  either  of  defendants 
with  taxes  paid  by  the  complainant  on  the  property  or  with, 
what  they  paid   M.   N.,   yet  he  has   done   so. 

Eighth.  C.  D.  cannot  be  charged  with  attorney's  fees.  It 
was   a   contract   she   had  no   power   to   make. 

R.   Y.,    for   Defendants. 


No.  757. 

Exceptions  to  Master's  Report  and  Motion  for  Allowance 
(Another  Form). 

[Caption.] 

Now  comes  the  petitioner  in  the  above  entitled  cause  and 
prays  that  it  may  be  allowed  exceptions  on  the  following 
findings  of  fact  and  conclusions  of  law  of  J.  A.  M.,  Mas- 
ter  in  the  above   entitled   cause: 

First.  That  the  Master  finds  as  a  matter  of  law  that  the 
numerals  1-0-8  as  used  by  your  petitioner  are  not  the  sub- 
ject of  a  trade-mark. 


PROCEEDINGS  BEFORE  A  MASTER.  1123 

Your  petitioner  prays  that  he  may  be  allowed  an  excep- 
tion to  this  finding  and  states  that  as  a  matter  of  law 
numerals  as  used  by  your  petitioner  are  the  subject  of  a 
trade-mark. 

Second.  That  the  Master  finds  that  the  petitioner  is  not 
entitled  to  an  injunction  on  account  of  an  infringement  of 
the  defendant  on  the  alleged  trade-mark,  and  your  petitioner 
prays  that  he  may  be  allowed  an  exception  on  this  finding. 

Third.  That  the  Master  finds  that  the  petitioner  has  not 
established  his  case  of  unfair  competition  on  the  part  of 
the  defendant  as  will  entitle  him  to  an  injunction  as  prayed 
for,  and  your  petitioner  prays  that  he  may  be  allowed  an 
exception    to    this   finding. 

Fourth.  That  the  Master  finds  that  the  petitioner  is  not 
entitled  to  an  accounting  for  damages,  and  your  petitioner 
prays  that  he  may  be  allowed  an  exception  to  this  finding. 

That  he  may  be  allowed  a  general  exception  to  the  re- 
port of  the  Master  in  that  it  is  against  the  law,  against 
evidence   and  against  the   weight  of  evidence. 

Goldsmith   Silver   Company, 

By  its  Attorney,  M.  E.  R. 


No.  758. 

Receiver's  Exceptions  to  Master's  Report  Because  of  His  Lack 

of  Authority. 

{Caption.'] 

To   the    Honorable    E.    R.    M.,    Judge: 

Now  comes  G.  W.  F.,  Receiver,  and  says  to  the  Court 
that  the  findings  of  fact  and  conclusions  of  law  made  by 
Ben  H.  Stone,  Master  in  Chancery  pro  hac  vice,  filed  herein 
on  the  8th  day  of  February,  1917,  should  not  be  considered 
as  findings,  but  that  said  report  should  only  be  considered 
as  a  report  of  the  evidence  taken  by  him,  for  the  reason 
that  the  order  of  Court  appointing  said  Master  in  Chancery 


1124  SUITS   IN    EQUITY. 

does  not  authorize  or  require  said  Master  to  make  or  re- 
port any  findings  of  fact  or  conclusions  of  law,  but  simply 
and  only  directs  and  empowers  the  said  Master  in  Chan- 
cery to  hear  evidence  and  to  seasonably  report  thereon. 
And,  therefore,  said  Receiver  excepts  to  the  Court's  con- 
sidering such  findings  of  fact  or  conclusions  of  law  so  made 
by  said  Master.  Wherefore,  said  Receiver  prays  the  Court 
to  strike  out  and  not  consider  any  of  the  findings  of  fact 
or  conclusions  of  law  contained  in  said  report,  but  to 
wholly  disregard  the  same  and  to  accept  said  report  only  as 
showing  what  evidence  was  taken  and  returned  by  the 
Master. 

Subject  to  the  foregoing  motion  and  exception,  without 
waiving  the  same,  but  insisting  thereon,  yet  solely  for  the 
purpose  of  protecting  this  Receiver's  rights  and  in  com- 
pliance with  the  rules  of  equity,  in  the  event  the  Court  shall 
overrule  said  foregoing  motion  and  shall  consider  such  find- 
ings of  fact  and  conclusions  of  law,  then  this  Receiver  pre- 
sents for  the  consideration  of  the  Court  the  following  ex- 
ceptions  to   certain   findings    and    conclusions,   to    wit: 

********* 

Wherefore,  Receiver  prays  that  its  motion  set  forth  in 
paragraph  1  hereof  to  reject  the  findings  and  conclusions 
of  the  Master  be  granted,  and  that  said  findings  be  disre- 
garded; but  if  said  motion  shall  be  overruled,  then  Receiver, 
reserving  all  exceptions  and  objections  to  the  action  of  the 
Court  which  he  may  be  entitled  thereby,  prays  the  Court 
to  reject  the  findings  and  conclusions  of  said  Master  set 
forth  in  the  foregoing  exceptions,  and  to  make  findings  in 
accordance  with  the  truth  and  justice  of  the  record  and  in 
accordance  with  the  foregoing  exceptions;  and  for  any  and 
all  such  other  orders,  judgments  and  decrees  as  said  Re- 
ceiver may  be  entitled  to  in  the  premises  he  will  every  pray. 

A.  B.  and  C.  D., 
Attorneys  for  Receiver. 


PROCEEDINGS   BEFORE  A   MASTER.  1125 

No.  759. 

The  Plaintiff's  Exceptions  to  the  Report  of  the  Master  on 
Accounting. 

[Caption.] 

Exceptions  taken  by  the  plaintiff  to  the  report  made 
herein  by  Charles  B.  Morrison,  Esq.,  one  of  the  Masters  of 
this  Court,  to  this  cause,  on  accounting  by  an  order  of 
this  court  herein   duly  made  and  entered : 

First  Exception :  For  that  the  Master  does  not  find  and 
hold  that  plaintiffs  are  entitled  to  recover  on  the  basis  of  an 
established   royalty. 

Second  Exception :  For  that  the  Master  does  not  find  and 
hold  that  the  plaintiffs  are  entitled  to  recover  in  this  action 
for  the  rubber  tires  and  rubber  sections  made  by  it  and 
sent  to  foreign  countries. 

Third  Exception:  For  that  the  Master  does  not  find  and 
hold  that  the  plaintiffs  are  entitled  to  recover  out  of  the 
general  profits  made  by  defendant  during  the  infringing 
period  pro  rata,  as  the  sales  of  infringing  tires  bear  to  the 
total  sales  of  defendant  during  the  infringing  period. 

Fourth  Exception :  For  that  the  Master  does  not  award 
interest  to  plaintiffs  from  the  time  when  royalties  should 
have  been  paid,  had  the  defendants  been  operating  under  a 
license,  and  in  accordance  with  the  licenses  which  were  is- 
sued  by   the   plaintiffs. 

Fifth  Exception :  For  that  the  amount  found  by  the 
Master  as  due  from  the  defendant  to  the  plaintiff  is  too 
small,  considering  the  nature  of  the  invention  and  the  util- 
ity and  advantages  of  the  monopoly  granted  by  the  patent 
sued  on. 

Respectfully    submitted, 

John  W.   Hill, 
Solicitor   for   Complainants. 


1126  SUITS  IN   EQUITY. 

No.  760. 

Exceptions  to  Report  of  Special  Master  (Another  Form). 

District  Court  of  the  United  States,  District  of  — 

Division. 


►No.  887. 


The  A.  B.  Trust  Company  of  ,  ^ 

Trustee,    Complainant, 

vs. 

The  C.  &  D.  Railroad  Company  et  al. 

S.  M.,  receiver  of  the  C.  &  D.  Railroad,  excepts'  to  so 
much   of  said    report   as   finds : 

First.  That  the  Second  National  Bank  of has  a  first 

lien  or  charge,  or  any  other  lien  or  charge,  upon  the  real 
estate  mentioned  in  said  report  superior  to  the  lien  of  the 
mortgage  of  the  C.   &  D.   Railroad   Company  to  the  E.  F. 

Trust  Company  of  ,  trustee,  dated  November  9,   1895, 

or  to  the  lien  of  the  mortgage  of  said  railroad  company  to 
the  A.  B.  Trust  Company  of  ,  trustee,  dated  . 

Second.  That  H.  W.  has  a  first  lien  or  charge,  or  any 
lien  or  charge,  upon  the  real  estate  mentioned  in  said  re- 
port superior  to   the  lien   of  the  mortgage  of  the  C.  &  D. 

Railroad   Company  to  the   E.   F.   Trust  Company  of  , 

trustee,  dated  ,  or  to  the  lien  of  the  mortgage  of  said 

railroad   company   to   the   A.    B.    Trust   Company   of  , 

trustee,   dated  . 

Third.  That  L.  P.  has  a  first  lien  or  charge,  or  any  lien 
or  charge,  upon  the  real  estate  mentioned  in  said  report 
superior  to  the  lien  of  the  mortgage  of  the  C.  &  D.  Rail- 
road Company  to  the  E.  F.  Trust  Company  of  New  York, 

trustee,  dated  ,  or  to  the  lien  of  the  mortgage  of  said 

railroad    company   to   the    A.    B.    Trust    Company   of   ^ 

trustee,  dated  .  R.  X., 

Counsel  for   S.   M.,   Receiver. 


PROCEEDINGS   BEFORE   A   MASTER.  1127 

No.  761. 

Order  Granting  Leave  to  Amend  Exceptions  to  Master's 

Report.(l) 
[Caption.] 

It  is  further  ordered  that  leave  be  granted  to,  complain- 
ant to  amend  its  exceptions  to  the  report  of  the  Master 
heretofore  filed  in  said  cause  for  failure  to  report  upon 
the  facts  as  to  the  former  adjudications  mentioned  in  the 
bill   of   complaint   and   his   conclusions   of   law    thereon. 

(1)  Not  specifically  covered  by  any  rule  but  falls  within  the  general 
powers  of  a  court  of  equity.    See  Equity  Rule  66. 


No.  762. 

Plaintiff's  Adoption  of  Exceptions  by  Receiver  to  Master's 

Report. 

[Caption.] 

Now  comes  Emile  K.  Boisot,  Trustee,  plaintifif  and  for 
the  purpose  of  avoiding  a  useless  lengthening  of  the  rec- 
ord herein,  and  in  order  that  the  rights  of  said  plaintiff 
may  be  protected  in  this  cause,  hereby  adopts  as  his  own 
the  exceptions  to  the  report  of  the  Master,  filed  herein  on 
the  26th  day  of  February,  1917,  by  Guy  W.  Faller,  Re- 
ceiver, in  said  cause,  including  the  motion  set  forth  in  para- 
graph 1  of  said  exceptions  to  reject  and  not  consider  the 
findings  of  fact  or  conclusions  of  law  contained  in  said  re- 
port of  said  Master,  as  well  also  as  adopting  the  prayer 
of  said  Receiver  set  forth  in  said  exceptions,  and  in  all 
other  respects  this  plaintiff  makes  said  instrument  so  filed 
by  said  Guy  W.  Faller,  Receiver,  his  own,  and  prays  the 
Court  to  act  upon  said  exceptions  and  motion  on  behalf  of 
the  plaintiff,  and  this  plaintiff  also  reserves  unto  himself 
all  such  other  exceptions  and  objections  to  the  action  of 
said  Master  and  to  the  ruling  of  the  Court  on  said  report, 


1128  SUITS   IN   EQUITY. 

to  which  this  plaintiff  may  be  entitled,  the  same  as  though 
he  had  written  out  in  full  the  exceptions  and  motion  so 
filed  by  said  Guy  W.  Faller,  Receiver. 


No.  763. 

Master's  Report  in  Accounting  in  Suit  for  Infringement  of 

Patent. 
[Caption.] 

To  the  Honorable  Judge  of  said  Court: 

The  undersigned,  Charles  B.  Morrison,  Master  in  Chan- 
cery of  said  Court,  respectfully  represents  unto  your  Hon- 
ors that  on  the  8th  day  of  February,  1913,  the  above  en- 
titled suit  was  referred  to  him  with  directions  that  he  as- 
certain the  gains  and  profits  made  by  the  defendant  and  the 
amount  of  damages  sustained  by  the  complainants  by  rea- 
son of  the  infringement  by  the  defendant  of  Letters  Patent 
No.  554,675,  and  report  his  conclusions  of  fact  and  of  law 
to  the  Court. 

Pursuant  to  the  order  of  reference,  the  parties  by  their 
respective  attorneys  appeared  before  the  undersigned  on  the 
13th  day  of  February,  1913,  and  on  divers  days  thereafter, 
until  the  13th  day  of  September,  1915,  at  which  last  men- 
tioned time  the  taking  of  testimony  and  the  making  of  oral 
arguments  were  concluded.  That  on  said  divers  days  the 
parties  introduced  certain  oral  and  documentary  evidence 
and  certain  physical  exhibits  and  took  other  necessary  steps 
and  proceedings,  all  of  which  will  more  fully  and  at  large 
appear  by  the  transcript  of  the  testimony  and  proceedings 
had  and  taken  before  the  undersigned  and  herewith  returned 
into   court. 

By  agreement  of  the  parties  testimony  was  taken  before 
the  undersigned  at  Akron,  Ohio,  on  four  separate  occasions, 
at  New  York  City  on  three  separate  occasions,  and  in  the 
city  of  Chicago  on  different  occasions,  as  shown  by  the 
transcript.     [Here  follow  findings  of  fact  and  of  law.] 


PROCEEDINGS   BEFORE   A    MASTER.  1129 

No.  764. 

Statement  by  Master  of  Objections  to  His  Report  (In  the 

Report). 

The  undersigned  master  further  reports  that  on  the  12th 
day  of  February,  1916,  he  caused  a  notice  in  writing,  to- 
gether with  a  copy  of  his  draft  report,  to  be  served  upon 
counsel  representing  both  sides  of  the  case,  notifying  them 
that  objections  thereto  might  be  filed  on  or  before  ten  o'clock 
in  the  forenoon  of  Friday,  February  25,  1916,  and  that  all 
objections  filed  within  said  time  would  come  on  to  be  heard 
before  him. 

That  within  said  time  counsel  for  complainants  filed  ob- 
jections numbered  1  to  4.  inclusive,  and  counsel  for  de- 
fendant filed  objections  numbered  1  to  54,  inclusive.  Coun- 
sel on  both  sides  stated  to  the  master  that  they  did  not 
desire  to  argue  the  objections  before  him. 

After  duly  considering  the  objections  and  his  report,  the 
master  overruled  each  and  all  of  said  objections  and  stands 
by  his  report. 


No.  765. 

Return  of  Master  in  Accounting  for  Infringement  of  Patent 
(At  End  of  the  Report). 

I  herewith  return  into  court  a  true  and  correct  transcript 
of  the  testimony  and  proceedings  had  and  taken  before  me 
consisting  of  2,008  pages  of  testimony,  numbered  from  1  to 
2,008,  together  with  10  pages  of  index,  making  a  total  of 
2,018  pages. 

I  also  return  into  court  complainant's  documentary  ex- 
hibits:    [Here  follows  the  list.] 

The  above  are  all  the  exhibits  introduced  before  the  mas- 
ter that  were  left  in  his  custody.  The  following  exhibits 
were  delivered  to  counsel  for  complainants  for  use  in  other 
cases  involving  the  same  patent  and  are  still  in  his  custody 
and  may  be  filed  hereafter:     [Here  follows  the  list.] 

Many  exhibits  other  than  those  mentioned  above  were  in- 
troduced in  evidence  and  bound  or  written  into  the  trans- 


1130  SUITS    IN    EQUITY. 

script  at  the  places  where  introduced  and  may  be  found  by 
reference  to  the  index  to  the  transcript. 

I  also  return  the  objections  filed  by  complainants  and  the 
objections  filed  by  defendant. 

Respectfully  submitted, 

C.   B.   Morrison^ 
Master  in  Chancery,  United  States  District  Court, 
Northern  District  of  Illinois. 


No.  766. 

Notice  of  Hearing  on  Objections  to  Master's  Report. 

[Caption.] 

Please  take  notice  that  on  the  pleadings,  proofs,  testimony 
and  exhibits,  the  report  of  the  master,  Charles  B.  Morrison, 
filed  herein  on  or  about  March  3,  1916,  and  all  other  papers 
and  documents  in  this  case,  this  court  will  be  moved  at  a 
term  thereof  to  be  held  for  the  hearing  of  motions  at  the 
court-house  (general  post-office  building)  in  the  city  of  Chi- 
cago, 111.,  on  Wednesday,  September  27,  1916,  at  10  o'clock 
in  the  forenoon  of  that  day,  or  as  soon  thereafter  as  counsel 
can  be  heard: 

1.  That  the  exceptions  to  said  report  of  said  master  filed 
by  the  defendant  herein,  and  each  and  all  of  them,  be  over- 
ruled. 

2.  That  the  exceptions  to  said  report  of  said  master  filed 
by  plaintiffs  herein,  and  each  and  all  of  them,  be  allowed. 

3.  That  the  damages  found  and  stated  by  the  master  in 
his  said  report  be  increased  to  not  exceeding  three  times  the 
amount  found  by  said  master. 

4.  That  damages  be  awarded  plaintiffs  for  the  tires  made 
by  defendant  and  shipped  to  foreign  countries. 

5.  That  interest  be  allowed  plaintiffs  on  the  sales  made  by 
defendant,  from  the  time  when  such  sales  were  made. 

6.  That  said  report  as  so  changed  or  amended  be  con- 
firmed. 

7.  For  final  judgment  herein  with  costs  and  disburse- 
ments against  the  defendant  and  for  such  other  and  further 


PROCEEDINGS  BEFORE  A  MASTER.  1131 

order,  judgment   and   relief  as  to  the  court  may  seem  just 
and  equitable.  Yours,  etc., 

John  W.   Hill, 

Of  Counsel  for  PlaintiflFs. 
Chas.    W.    Stapleton, 

Of  Counsel. 


No.  7G7. 

Decree   on   Master's   Report,   Where   Suit   for   Infringementi 

of  Patent. 

[Caption.] 

This  cause  coming  on  to  be  heard  upon  the  report  of  the 
master,  Chas.  B.  Morrison,  Esq.,  to  whom  it  was  referred 
to  ascertain  the  amount  of  gains  and  profits  and  the  amount 
of  damages  sustained  by  plaintiffs  in  accordance  with  the 
interlocutory  decree  herein,  and  also  upon  the  exceptions 
taken  to  said  report  on  the  part  of  plaintiffs  and  defendant, 
and  said  cause  having  been  argued  by  counsel  for  the  re- 
spective parties  and  due  deliberation  had  thereon,  it  is 

Ordered,  adjudged  and  decreed  as  follows: 

1.  That  each  and  all  of  the  exceptions  taken  to  said  mas- 
ter's report  by  either  of  the  parties  are  overruled. 

2.  That  letters  patent  of  the  United  States,  No.  554,675, 
dated  February  18,  1896,  and  issued  to  Arthur  W.  Grant 
for  improvements  in  rubber-tired  wheels,  are  good  and  valid 
letters  patent. 

3.  That  said  Arthur  W.  Grant  was  the  first  true  and 
original  inventor  of  the  improvements  described  and  claimed 
in  said  letters  patent. 

4.  That  the  plaintiffs  herein  are  the  lawful  owners  of  said 
letters  patent  and  are  entitled  to  recover  the  gains,  profits, 
savings  and  advantages  made  and  derived  by  defendant 
from  the  use  thereof  and  to  recover  damages  from  said  de- 
fendant for  the  infringement  thereof. 

5.  That  the  defendant  herein  has  infringed  upon  the  said 
letters  patent  and  upon  the  rights  of  the  plaintiffs  there- 
under and  of  each  of  the  claims  thereof. 


1132  SUITS   IN    EQUITY. 

6.  That  the  plaintiffs  recover  of  the  defendant,  B.  F, 
Goodrich  Company,  for  the  damages  sustained  by  plaintiffs 
by  reason  of  such  infringement,  the  sum  of  two  hundred 
sixty-two  thousand,  two  hundred  ninety-eight  dollars  and 
ninety-five  cents  ($262,298.95),  together  with  ten  thousand, 
three  hundred  twelve  dollars  and  twenty-eight  cents  ($10,- 
312.28),  being  five  (5%)  per  cent,  interest  thereon  since 
March  22,  1916;  and  also  plaintiff's  costs  and  disbursements 
herein,  to  be  taxed  and  noted  at  the  foot  of  this  decree,  and 
that  plaintiffs  have  execution  therefor.  Execution  to  be 
stayed  for  sixty  days  from  date  hereof. 

7.  That  this  decree  carries  interest  on  the  amount  thereof 
until  the  same  is  paid  at  five  (5%)  per  cent,  per  annum. 

Dated  January  3,  1917.  A.  L.  Sanborn, 

Judge. 

No.  768. 
Final  Decree  on  Master's  Report. 

[Caption.] 

This  cause  came  on  for  final  hearing  on  the  master's  re- 
port, the  exceptions  thereto  and  the  evidence  and  proofs  in 
the  case,  and  the  court  being  fully  advised  in  the  premises, 
doth  order  and  decree  that  the  exceptions  of  the  plaintiff  to 
the  report  of  the  master  be  and  the  same  are  hereby  over- 
ruled, and  the  exception  of  the  respondent  to  the  master's 
conclusion  of  law  from  the  facts  relating  to  the  increase  of 
the  valuation  of  the  shares  of  complainant  by  the  state  board 
of  equalization  for  banks  is  sustained,  and  on  the  report  of 
said  master  and  the  evidence  in  the  case. 

It  is  ordered,  adjudged  and  decreed  that  the  said  bill  of 
complainant  herein  be  and  the  same  is  hereby  dismissed  with 
costs  to  the  defendnat  to  be  taxed. 


No.  769. 

Final  Decree  on  Master's  Report. 
[Caption.] 

This  cause  having  come  on  to  be  heard  upon  the  report  of 
C.   G.,   Esq.,  one  of  the  masters  of  this  court,  to  whom  it 


PROCEEDINGS   BEFORE   A    MASTER.  1133 

was  referred  to  ascertain  and  report  [as  in  the  decretal  or- 
der], which  report  bears  the  date  of  the  day  of  , 

1894  [and  also  upon  exceptions  taken  to  the  said  report  on 
the  part  of  said  plaintiff,  and  also  on  the  part  of  said  defend- 
ant, and  upon  the  equity  reserved],  and  the  said  cause  hav- 
ing been  argued  by  counsel,  and  due  deliberation  had  there- 
on, 

It  is  ordered,  adjudged  and  decreed,  and  this  court,  by 
virtue  of  the  power  an  authority  therein  vested,  does  order, 
adjudge  and  decree  that  [the  decision  of  the  court]. 

And  it  is  further  ordered,  adjudged  and  decreed,  and  this 
court,  by  virtue  of  the  power  and  authority  therein  vested, 
does  order,  adjudge  and  decree,  that  the  said  defendant  pay 
to  the  said  plaintiff  the  sum  of  dollars. 

And  it  us  further  ordered,  adjudged  and  decreed  that  the 
said  defendant  pay  to  the  said  plaintiff  his  costs  in  this  suit 
to  be  taxed,  and  that  the  said  plaintiff  have  execution  for 
such  costs,  and  for  the  sum  above  decreed  to  be  paid  to  said 
plaintiff  as  aforesaid. 


No.  770. 

Reference  to  a  Master  in  Special  Cases.  (1) 

For  master's  reports  in  particular  cases  see  under  titles 
"Patents"   and   "Proceedings   Relating   to  Receivers,"   etc. 

(1)  On  masters  generally.  See  Foster's  Fed.  Prac,  5th  ed.,  Sees. 
278,  2,77,  384,  386,  388.  391,  393. 

A  special  master  has  no  power,  under  Equity  Rule  62,  to  order 
an  injunction,  nor  in  the  absence  of  special  statute  can  a  court  give 
him  such  authority.     In  re  Gordon,  250  Fed.  798. 

In  an  accounting  before  a  master,  under  Equity  Rule  63,  excep- 
tions to  an  account  filed  with  the  master  need  not  be  made  formally; 
the  master  has  discretionary  powers  in  that  matter.  Coffield  Motot 
Washer  Co.  v.  Wayne  Mfg.  Co.,  255  Fed.  558. 


No.  771. 

Contempt  Proceedings. 
See  hereinafter  under  the  heading  "Contempt  of  Court. 


1134  SUITS    IN    EQUITY. 

RECEIVERS.* 
No.  772. 

Bill  by  Judgment  Creditor  Praying  the  Appointment  of  a 

Receiver.(l) 

For  form  of  bill  by  judgment  creditor  for  the  appoint- 
ment of  a  receiver,  see  form  of  bill  in  equity  No.  . 

(1)  It  is  now  well  settled  law  that  simple  contract  creditors  can  not 
come  into  a  court  of  equity  to  obtain  the  seizure  of  the  property  of 
their  debtor  and  its  application  to  the  satisfaction  of  their  claims. 
Judgment  creditors  only  can  maintain  such  suits  for  the  appointment 
of  a  receiver.     Hollins  v.  Brierfield  Coal  &  Iron  Co.,  150  U.  S.  378. 


No.  773. 

Bill  for  the  Foreclosure  of  a  Railway  and  Appointment  of 

Receiver. 

For  form  of  bill  in  equity  for  the  foreclosure  of  a  rail- 
way, see  form  of  bill  No.  . 


No.  774. 

Prayer  for  Receiver  of  Irrigation  System. 

That  a  receiver  be  appointed  according  to  the  law  and 
the  usage  of  this  court,  and  that  such  receiver  be  author- 
ized, directed  and  empowered  to  take  immediate  possession 
of  the  irrigation  system  in  this  complaint  referred  to  and  to 
receive  and  collect  all  sums  due  from  all  water  contract- 
holders   in   said   irrigation  system  entitled   to   receive   water 

*  What  are  commonly  known  as  receivership  suits  are  usually  begun 
by  a  judgment  creditor's  hill  against  an  insolvent  person  or  corpora- 
tion or  by  a  bill  to  foreclose  a  mortgage  against  a  railroad  or  manu- 
facturing corporation.  Receivers  may  be  appointed  in  many  other 
classes  of  suits.  See  Beach's  Mod.  Eq.  Prac,  chap.  22;  Bates'  Fed. 
Eq.,  Sees.  580  et  seq. ;  Thompson  on  Corporations,  title  17;  Foster's 
Fed.  Prac,  5th  ed.,  Sees.  301  to  325;  Penn.  Steel  Co.  v.  N.  Y.  City 
Ry.  Co.,  198  Fed.  721;  Re  Metropolitan  Ry.  Receivership,  208  U.  S. 
90,  52  L.  Ed.  403;  Hollins  v.  Briarfield  C.  &  I.  Co.,  150  U.  S.  371,  37 
L.  Ed.  1113. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1135 

therefrom  under  the  order  of  this  court,  including  interest, 
and  to  hold,  use  and  dispose  of  the  same  as  directed  by  this 
court  for  the  purposes  in  this  complaint  set  out,  and  that 
each  and  all  of  the  complainants  and  all  water  contract  hold- 
ers in  said  irrigation  system  who  are  to  receive  water  there- 
from under  the  order  of  this  court  be  authorized  and  direct- 
ed to  pay  any  and  all  sums  due  on  said  contracts  to  said 
receiver,  and  that  the  said  defendant,  Twin  Falls  Salmon 
River  Land  and  Water  Company,  and  the  defendant,  Salmon 
River  Canal  Company,  Limited,  and  each  of  them,  and  their 
and  each  of  their  agents,  officers,  attorneys,  servants,  em- 
ployes and  assigns,  be  restrained  and  enjoined  from  collect- 
ing, or  attempting  to  collect,  any  such  sums  of  money  so  due 
from  any  settlers  or  water  contract  holders  in  said  irrigation 
system,  or  their  assigns. 

That  the  said  receiver  be  empowered  and  directed  to 
secure  additional  supply  of  water  for  such  segregation,  if 
the  same  be  found  feasible;  or,  in  lieu  thereof,  this  court 
direct  the  manner  and  method  of  reducing  the  said  segrega- 
tion to  a  point  within  the  water  supply,  so  that  the  land 
remaining  shall  have  appurtenant  thereto  an  ample  supply  of 
water  and  not  less  than  the  amount  claimed  by  these  plain- 
tiffs, as  stated  in  this  complaint,  and  that  the  water  rights 
and  water  contracts  for  all  land  beyond  and  outside  of  said 
area  so  established  as  aforesaid  be  annulled,  cancelled  and 
held  for  naught,  and  the  defendant,  Salmon  River  Canal 
Company,  Limited,  be  authorized  and  directed  to  cancel  the 
corporate  stock  therefor,  and  be  restrained  and  enjoined 
from  recognizing  such  land  as  entitled  to  water,  or  from 
delivering  or  furnishing  water  to  or  for  said  lands. 

That  it  be  adjudged,  decreed  and  determined  that  in  the 
event  such  segregation  be  reduced  as  aforesaid,  the  owner  or 
holder  of  the  land  and  appurtenant  water  right  be  entitled 
to  receive  from  the  said  trust  fund  under  the  direction  of 
this  court,  any  and  all  sums  of  money  paid  on  account  of 
the  purchase  of  said  water  right,  with  legal  interest  thereon, 
together  with   all  other  legal   damage   to  be  determined  by 


1136  SUITS    IN    EQUITY. 

this  court,  resulting  to  such  owner  or  holder  by  reason  of 
the  cancellation  of  his  said  water  right. 

That  this  court  decree,  determine  and  fix  all  priorities 
existing,  if  any,  by  reason  of  a  settlenjent  and  improvement, 
and  that  pending  a  final  determination  of  this  action,  the 
defendants,  Salmon  River  Canal  Company,  Limited,  and 
Twin  Falls  Salmon  River  Land  and  Water  Company,  be 
enjoined  and  restrained  from  delivering  or  furnishing  any 
water  to  any  land  not  actually  in  cultivation  at  the  time  of 
the  filing  of  this  complaint. 

That  the  said  receiver  be  authorized  and  directed  to  take 
immediate  possession  and  control  of  said  irrigation  system 
described  in  this  complaint  and  to  deliver  and  furnish  water 
as  covenanted  to  be  furnished  on  the  terms  and  conditions 
of  the  settlers'  contract  and  state  contract  herein  to  the  lands 
entitled  thereto,  and  that  the  said  receiver  take  possession  of 
all  moneys  due  or  collected  for  maintenance  for  the  year 
1914,  and  for  the  subsequent  years  if  the  receiver  be  in 
charge  of  said  irrigation  system,  or  until  further  order  of 
this  court,  and  use  and  expend  the  same  in  the  operation 
and  repair  of  said  irrigation  system,  and  that  the  defendant. 
Twin  Falls  Salmon  River  Land  and  Water  Company,  and 
the  defendant,  Salmon  River  Canal  Company,  Limited,  their 
agents,  servants,  officers  and  employes,  be  directed  to  turn 
over  the  money  collected  by  them,  if  any,  for  the  mainte- 
nance charges  during  the  year  1914  to  said  receiver. 

That  the  said  receiver  be  authorized  and  directed  to  main- 
tain the  expenses  incurred  by  these  plaintiffs  in  this  action, 
and  to  pay  the  costs,  attorneys'  fees,  witness  fees  and  other 
proper  items  of  expense  as  may  be  directed  by  the  court. 

That  the  said  receiver  be  authorized  and  directed  to  issue 
receiver's  certificates  from  time  to  time  as  may  be  ordered 
by  this  court  for  the  purpose  of  said  receivership. 

That  the  defendant.  Twin  Falls  Salmon  River  Land  and 
Water  Company,  be  compelled  to  account  to  this  court  for 
any  and  all  sums  converted  and  used  by  it  from  the  main- 
tenance  charges   collected  by  the   defendant,    Salmon   River 


RECEIVERS ORIGINAL   PROCEEDINGS.  1137 

Canal  Company,  Limited,  and  misappropriated  by  said  Twin 
Falls  Salmon  River  Land  and  Water  Company  as  in  this 
bill  of  complaint  set  out. 

That  these  plaintiffs  and  all  water  contract  holders  in  said 
irrigation  system  hereinbefore  described  have  such  other  or 
further  relief  in  the  premises  as  may  be  just  and  equitable, 
together  with  the  costs  and  disbursements  of  this  action. 

A.  B.  and  C.  D., 
Solicitors  for  Plaintiffs. 

[Verificatioii.'] 


No.  775. 

Allegations   Showing  Equity  Jurisdiction  and  Asking  for  a 
Receiver,  (1)  by  a  Holder  of  Corporation  Notes. 

Your  complainant  is  informed  and  believes  and  therefore 
upon  information  and  belief  avers  that  it  is  inevitable  that 
the  defendant  will,  immediately  after  August  31,  1916,  be 
faced  with  over  thirteen  millions  of  dollars  of  its  overdue 
notes,  which  it  can  not  pay;  that  undoubtedly  large  numbers 
of  the  holders  of  said  notes,  of  whom  there  are  now  about 
372,  will  immediately  bring  suits  against  the  defendant  to 
recover  the  same. 

Upon  information  and  belief  the  complainant  further  avers 
that  on  August  31,  1916,  payment  of  over  $2,300,000  of 
said  notes  of  the  Vermont  Valley  Railroad,  endorsed  by  the 
defendant  as  aforesaid,  will  be  demanded  of  the  defendant, 
and  for  non-payment  thereof  suits  to  recover  the  amount 
thereof  will  be  brought  against  the  defendant;  that  suits  will 
invariably  be  accompanied  by  attachment  of  its  available 
property;  that  such  suits  will  be  brought  in  many  different 
courts  in  different  states,  and  wherever  any  property  of  the 
defendant  can  be  found;  that  there  will  result  a  multiplicity 
of  suits  and  a  race  of  diligence  to  secure  such  attachments 
in  order  that  those  who  act  most  speedily  may  get  payment 
in  full  of  their  notes,  while  other  creditors  less  diligent  may 


1138  SUITS    IN    EQUITY. 

be  thereby  required  to  suffer  great  loss;  that  strenuous  at- 
tempts will  be  made  by  individual  creditors  to  secure  early 
judgments  and  priorities ;  that,  in  the  rush  for  security,  at- 
tachments and  levies  will  be  made  upon  the  engines,  cars 
and  rolling  stock  of  the  defendant,  and  upon  its  fuel,  ma- 
terial and  supplies  indispensable  to  the  operation  of  the  sys- 
tem; that  attachments  will  also  be  placed  upon  all  the  funds 
of  the  defendant  and  upon  all  available  revenues ;  that  the 
defendant  will  be  without  means  of  dissolving  such  attach- 
ments and  will  be  unable  to  use  in  carrying  on  its  business 
the  property  attached ;  and  that  if  this  race  of  diligence  is 
allowed  to  go  on,  great  loss  and  injustice  will  be  inflicted 
upon  the  bondholders  of  the  defendant  company,  whose  obli- 
gations are  not  yet  due  and  will  not  fall  due  for  a  consider- 
able time,  and  who  will  be  unable  to  protect  themselves  ex- 
cept through  the  relief  here  sought. 

And  your  complainant  is  further  informed  and  believes 
and  therefore  upon  information  and  belief  alleges  that  as 
the  result  of  such  suits,  attachments  and  levies  the  defendant 
will  be  seriously  hindered  in  the  operation  of  its  trains,  and 
will  be  unable  to  perform  its  duties  as  a  common  carrier  and 
as  a  carrier  of  the  United  States  mail,  or  to  discharge  its 
duties  to  the  public ;  that  in  the  proper  transaction  of  its 
business  it  is  necessary  for  the  defendant  to  interchange 
freight  with  other  railroads  and  to  pay  promptly  all  traffic 
balances  that  may  from  time  to  time  become  due  such  other 
railroads,  and  its  inability  to  do  so  because  of  attachments 
of  its  revenues  will  render  it  impossible  for  it  to  continue 
such  interchange,  resulting  in  great  loss  of  business  and  in- 
come ;  that  the  leases  and  contracts  under  which  defendant 
is  operating  its  system  of  railroads  as  above  set  forth  call 
for  the  prompt  payment  by  the  defendant  of  the  rentals  and 
other  charges  provided  for  therein,  and  most,  if  "not  all,  of 
them  are  subject  to  forfeiture  for  non-payment,  so  that  the 
inability  of  defendant  to  meet  such  payments  because. of  the 
loss  of  its  income  and  the  tying  up  of  its  revenues  by  such 
attachrnents   will   subject  the   defendants   to   such    forfeitures 


RECEIVERS ORIGINAL    PROCEEDINGS.  1139 

and  will  inevitably  lead  ta  the  disintegration  of  the  system 
and  to  a  chaotic  condition  of  the  whole  transportation  serv- 
ice of  the  defendant,  which  will  be  ruinous  financially  to  the 
defendant  and  many  of  its  subsidiary  companies,  and  will 
occasion  great  inconvenience  and  loss  to  all  the  communities 
which  depend  upon  them  for  service;  that,  if  permitted  to  go 
on  without  interference  of  this  court,  such  suits,  attachments 
and  levies  will  result  in  forced  sales  of  much  of  defendant's 
property  at  prices  far  below  the  real  value,  to  the  great  loss 
of  the  defendant  and  all  its  creditors  except  those  upon 
whose  judgments  such  sales  are  made;  and  that  great  waste 
and  loss  can  be  avoided,  and  the  property  be  preserved  for 
equitable  distribution  among  those  entitled  to  it,  only  by  the 
intervention  of  a  court  of  equity,  and  the  granting  of  equit- 
able relief,  including  the  appointment  of  a  receiver. 

Wherefore,  for  the  equal  protection  of  the  rights  not  only 
of  your  complainant  and  other  holders  of  the  promissory 
notes  of  the  defendant,  but  of  all  its  creditors,  including 
holders  of  bonds  that  will  not  fall  due  for  a  long  time  to 
come,  as  well  as  for  the  protection  of  the  stockholders  of  the 
defendant  whose  property  is  in  imminent  danger  of  being 
wasted,  and  of  the  public  which  is  vitally  interested  in  the 
continuous  and  interrupted  operation  of  this  great  transpor- 
tation system,  the  intervention  of  a  court  of  equity  is  im- 
peratively required,  especially  for  the  timely  appointment  of 
a  receiver  to  take  charge  of  and  preserve  the  property  of 
the  defendant,  and  to  collect  and  receive  and  properly  appro- 
priate the  income  thereof,  until  the  final  decree  of  the  court 
in  the  premises. 

This  suit  is  of  a  civil  nature,  in  equity,  between  citizens  of 
different  states,  wherein  the  matter  in  controversy  as  afore- 
said exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  $3,000. 

Inasmuch,  therefore,  as  your  complainant  has  no  ade- 
quate remedy  at  law  for  the  aforesaid  grievances  and  can 
have  relief  only  in  equity,  your  complainant  files  this  bill  of 
complaint  and  prays  for  equitable  relief  as  follows: 


1140  SUITS    IN    EQUITY. 

1.  That  the  rights  of  yonr  complainant  and  of  all  other 
creditors  of  the  defendant  may  be  ascertained  and  decreed, 
and  that  the  court  fully  administer  the  property  and  funds 
in  which  the  defendant  is  interested,  constituting  the  entire 
railroad  system  and  other  assets  of  the  defendant,  and  ascer- 
tain the  several  and  respective  liens  and  priorities  existing 
upon  each  and  every  part  of  said  system,  and  enforce  and 
decree  the  rights,  liens  and  equities  of  the  creditors  of  the 
defendant  as  the  same  may  be  finally  ascertained  by  the 
court. 

2.  That  the  court  forthwith  appoint  a  receiver  of  all  and 
singular  the  property  and  assets  operated,  held,  owned  or 
controlled  by  the  defendant,  including  its  entire  railroad 
system  and  all  the  lands,  tracks,  terminal  facilities,  rolling 
stock,  franchises,  rights,  materials,  machinery,  supplies,  book 
accounts,  choses  in  action,  shares  of  stock,  bonds  and  other 
property,  real  and  personal,  of  every  description  and  wher- 
ever situated,  belonging  to  tlie  defendant  or  in  which  it  has 
an  interest,  with  full  power  and  authority  to  demand,  sue 
for,  collect,  receive  and  take  into  possession  the  goods,  chat- 
tels, rights,  credits,  moneys,  effects,  lands,  tenements,  books, 
papers  and  property  of  every  description  belonging  to  the 
defendant,  and  with  all  the  incidental  powers  ordinarily 
vested  in  receivers  in  like  cases;  and  also  with  full  power 
and  authority  to  run  and  operate  all  the  railroads  and  prop- 
erty owned  or  controlled  by  the  defendant,  or  in  which  the 
defendant  has  such  right  or  interest,  and  to  collect  and  re- 
ceive all  the  rents,  issues,  earnings  and  profits  thereof,  and 
to  apply  the  said  income  and  receipts  thereof,  under  the  di- 
rection and  order  of  the  court,  for  such  a  period  as  the  court 
shall  order;  to  protect  and  preserve  the  corporate  franchises, 
privileges  and  property  and  to  preserve  the  corporate  exist- 
ence of  the  defendant;  to  protect  and  preserve  the  said  rail- 
roads and  property,  real  and  personal,  from  being  sacrificed 
under  any  proceedings  which  can  or  may  be  taken,  likely  to 
sacrifice  and  prejudice  the  same;  to  appoint  such  agents  and 
attorneys   as  may  be   necessary   for  the   proper  handling  of 


RECEIVERS ORIGINAL    PROCEEDINGS.  1141 

such  property  and  business;  to  do  any  and  all  other  acts 
which  may  be  necessary  to  preserve  the  valuable  rights, 
property  and  franchises  of  the  defendant :  and  to  exercise 
such  further  powers  as  the  court  may  from  time  to  time 
grant,  including  the  power  to  borrow  money  on  receiver's 
certificates,  or  otherwise,  as  may  be  necessary  in  connection 
with  its  administration  of  the  property  and  assets  of  the 
defendant. 

3.  That  because  of  the  imminence  of  the  danger  pending 
the  appointment  of  a  permanent  receiver,  this  court  appoint 
a  temporary  receiver  to  exercise  for  the  time  being  the  pow- 
ers and  authority  above  specified,  so  far  as  they  may  be 
appropriate. 

4.  That  all  creditors  and  stockholders  and  other  persons 
be  enjoined  from  instituting  or  prosecuting,  or  continuing 
the  prosecution  of,  any  actions,  suits  or  proceedings  at  law 
or  in  equity  or  under  any  statute  against  the  defendant  in 
any  court,  wherever  situated,  and  from  levying  any  attach- 
ments, executions  or  other  processes  upon  or  against  any 
property  of  the  defendant,  or  from  taking  or  attempting  to 
take  into  their  possession  the  property  of  the  defendant  or 
any  part  thereof,  or  any  property  of  which  the  defendant 
has  the  right  of  possession  until  the  further  order  of  the 
court. 

5.  That  the  defendant,  its  officers,  agents  and  employes, 
and  all  persons  claiming  and  acting  by,  through  and  under 
it,  and  all  other  persons,  be  enjoined  and  restrained  from 
interfering  with  the  said  receivers  in  taking  possession  of 
and  managing  the  said  property  and  business. 

6.  That  at  such  time  or  times  as  may  be  found  just  and 
proper  the  property  and  franchises  of  the  defendant  may  be 
ordered  to  be  sold  as  an  entirety,  to  be  held,  exercised  and 
enjoyed  by  the  purchaser,  or  in  such  parcels  and  in  such 
places  and  in  such  manner  and  upon  such  terms  and  con- 
ditions as  this  court  shall  deem  just  and  equitable,  and  the 
proceeds  of  any  such  sale  or  sales  distributed  among  those 
entitled  thereto,  or  that  the  property  of  the  defendant,  after 


1  142  SUITS    IN    EQUITY. 

satisfaction  of  the  claims  of  the  creditors,  may  be  returned 
to  it. 

7.  That  your  complainant  may  have  such  other  and  fur- 
ther relief  in  the  premises  as  the  nature  of  the  case  may 
require  and  as  to  the  court  may  seem  proper. 

8.  That  the  defendant  be  required,  pursuant  to  the  rules 
and  practice  of  the  court,  to  answer  all  and  singular  the 
matters  hereinbefore  stated,  but  not  under  oath,  an  answer 
under  oath  being  hereby  expressly  waived,  and  further  to 
perform  and  abide  by  such  order,  direction  and  decree  herein 
as  to  the  court  shall  seem  meet. 

May  it  please  the  court  to  grant  unto  your  complainant  a 
writ  of  subpoena  to  be  issued  out  of  and  under  the  seal  of 
this  court  and  directed  to  the  defendant,  requiring  it  to  ap- 
pear on  a  certain  day  before  the  court  and  make  answer  as 
aforesaid. 

And  may  it  please  the  court  to  grant  unto  your  complain- 
ant a  writ  of  injunction  to  be  issued  out  of  and  under  the 
seal  of  the  court,  and  to  be  directed  to  the  defendant  and  to 
its  officers  and  agents  and  all  persons  claiming  and  acting 
by,  through  or  under  the  defendant,  and  to  all  other  persons, 
enjoining  and  restraining  them  from  interfering  with  the 
said  receivers  in  taking  possession  of  or  in  managing  the 
said  property  and  business. 

Intercontinental  Rubber  Company, 

Date  .  By  B.  B.  J.,  its  Solicitor. 

[Verification.] 

(1)  In  re  Brown,  et  al.,  155  C.  C.  A.  228  (242  Fed.  452),  an  original 
petition  was  addressed  to  the  circuit  court  of  appeals  praying  the 
disapproval  of  an  order  of  the  district  court  appointing  a  receiver,  on 
the  ground  of  fraud  and  misrepresentation  made  to  the  district  court. 
and  the  proceeding  was  predicated  upon  Sec.  56  of  the  Judicial  Code. 
It  was  held  that  this  section  does  not  authorize  the  disapproval  of 
the  appointment,  but  only  the  assumption  of  jurisdiction  and  control 
of  property  outside  of  the  district  in  which  he  is  appointed.  The 
remedy  of  disapproval  of  an  order  appointing  a  receiver  is  by  appeal 
therefrom  under  Sec.  129  of  the  Judicial  Code. 

The  petition  in  this  case  was,  upon  motion,  disriiissed. 

For  receivers  generally  see  Foster's  Fed.  Prac,  5th  ed..  Sees.  301 
to  325. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1143 


No.  776. 

Bill  for  an  Account  of  Partnership  Dealings  and  Dissolution, 
and  for  a  Receiver. 


For  form  of  bill,  see  No. 


No.  777. 
Affidavit  of  Insolvency  in  Support  of  Bill.(l) 

State  of ,  Coiint}^  of  ,  ss. 

G.  L.,  of  lawful  age,  being  duly  sworn,  on  oath  says  that 
he  resides  in  the  city  of ,  state  of ,  and  is  the  treas- 
urer of  the  C.  D.  Co.,  a  New  Jersey  corporation,  defendant 
in  the  foregoing  bill  of  complaint;  that  he  has  heard  the 
foregoing  bill  orf  complaint  read  and  is  familiar  with  the 
facts  therein  stated.  That  all  said  facts  with  reference  to 
the  formation  of  said  corporation,  its  purposes,  the  amount 
of  its  stock,  and  its  business  and  property,  are  true  to  his 

own  knowledge.     That  a  debt  of dollars  due  on  call  by 

said  corporation  to  the  National  Bank  of  thg  city  of 

was  demanded  on  call,  and  became  due  and  payable  on 

the  day  of  ,  1893,  and  payment  thereof  was  re- 
fused and  default  m.ade  therein,  because  of  lack  of  sufficient 
funds  of  said  corporation  to  pay  the  same.     Further  debts 

of  said  corporation  matured  on  the  day  of  ,  1893, 

amounting  to   not  less   than  dollars,   and   default   was 

made  in  the  payment  thereof,  because  of  lack  of  funds  to  pay 

the  same.     On  the day  of  ,  1893,  further  debts  of 

said  corporation  matured,  amounting  to  not  less  than  

dollars,   and   default   was   made   in  the   payment  thereof  for 

lack  of  funds.     Daily  thereafter  during  the  month  of  

debts  will  mature. 

The   total    amount    of   which    said    indebtedness    maturing 
from  the  day  of  to  the  day  of  ,  1893, 


1144  SUITS   IN    EQUITY. 

is  more  than dollars.     The  corporation  is  also  indebted 

in  amounts  which  will  mature  from  day  to  day  during  the 

months  of  ,  and  ,   in   1893,  exceeding  

dollars. 

The  corporation  is  without  funds  to  meet  the  said  indebt- 
edness, or  any  considerable  part  thereof,  and  has  no  assets 
which  are  readily  convertible  into  money,  and  has  no  reason- 
able prospect  of  being  able  to  meet  its  obligations  after  this 
date.  The  assets  of  said  corporation  consist  of  several 
[cordage]  mills,  owned  or  operated  at  least  in  the  several 
cities  mentioned  in  the  bill  of  complaint,  and  all  the  [cord- 
age and  twine]  manufactured,  and  in  manufacture,  and  in 
process  of  manufacture,  the  value  of  all  which  it  is  impos- 
sible at  this  time  to  estimate,  or  to  even  approximate. 

That  the  corporation  also  has  certain  assets,  consisting  of 
open    accounts    receivable    and   bills    receivable,    the    greater 

part  of  which  mature  in  ,  and  ,  1893,  and  a 

very  small  part  of  which  is  available  for  the  raising  of 
money  at  this  time.  The  securities  of  said  company  which 
are  available  for  the  raising  of  said  money  are  already 
pledged  and  hypothecated  for  debts  due  by  the  corporation. 
The  corporation  can  not  pay  its  maturing  obligations,  and 
has  no  means  of  raising  money  to  pay  the  same,  and  is  in 
fact  unable  to  pay  its  debts,  and  is  insolvent. 

Subscribed  and  sworn  to  before  me  this day  of , 

1893.  J.  N., 

[Seal]  [OfUcial  Title.] 

(1)  See  Beach's  Modern  Eq.  Prac,  Sec.  729. 


No.  778. 
Order  Taking  Jurisdiction  and  Fixing  Day  for  Hearing. 

[Caption.] 

Now,  on  this  day  of  ,  comes  the  complainant, 

by  its  counsel,  R.  X.,  and  having  filed  its  bill  of  complaint 


RECEIVERS ORIGINAL   PROCEEDINGS.  1145 

and  -exhibits  moves  thereon,  and  upon  the  affidavits  of  [name 
afHcaifs]  for  the  appointment  of  a  receiver  of  the  railway 
and  property  of  the  C.  &  D.  Railway  Company ;  and  there- 
upon the  defendant,  the  C.  &  D.  Railway  Company,  appear- 
ing by  its  counsel,  L.  B.,  and  asking  a  postponement  of  the 
application : 

It  is  ordered  that  the  complainant's  application  be  and  is 

sustained,   and  the   further  hearing   stand  over  to  the  

day  of  ,  A.  D.  ,  at  ,   10  a.  m.,  with  the  right 

to  all  parties  to  be  then  heard  on  the  merits  of  said  appli- 
cation, without  any  prejudice  by  reason  of  this  order,  and 
that  in  the  meantime  the  defendants  be  restrained  from  mak- 
ing any  change  in  the  present  status  of  said  C.  &  D.  Railway 
other  than  may  be  necessary  in  the  proper  operation  of  said 
railwav  as  heretofore. 


No.  779. 

Notice  of  Application  for  the  Appointment  of  a  Receiver.  (1) 

To  R.  X., 

Attorney  for  : 


Notice  is  hereby  given,  pursuant  to  the  terms  of  an  order 

in  this  cause,  dated  the  day  of  ,  that  the  further 

hearing  of  the  application  for  the  appointment  of  a  receiver 
herein  will  be  had  before  the  Hon.  J.  B.,  the  district  judge 

of  this  circuit,  at  ,  on  ,  the  day  of  ,  at 

10  o'clock  in  the  forenoon  of  that  day,  or  as  soon  thereafter 
as  counsel  can  be  heard.  Yours,  etc., 

Dated  .  X.  &  X., 

Solicitors  for  Complainant. 

(1)  This  notice  should  be  given  each  party  interested  or  his  counsel. 


1146  SUITS   IN    EQUITY. 


No.  780. 


Motion  for  the  Appointment  of  Receiver  to  Take  Charge  of 
Mortgaged  Property,  Collect  Rents,  etc. 

The  District  Court   of  the   Unked   States,  District  of 


A.  B.,  Complainant, 

vs. 
C.  D.,  Defendant, 

Now  comes  A.  B.,  complainant  in  this  case,  and  moves  the 
court  for  the  appointment  of  a  receiver  herein  to  take  charge 
of  the  mortgaged  property  described  in  the  bill,  to  collect 
the  rents  thereof,  and  further  to  act  in  the  premises  as  this 
court,  after  hearing,  may  direct,  and  with  such  further  or- 
ders and  instructions  as  this  court  may  deem  proper  to  give. 

R.  X., 
Attorney  for  Complainant. 


No.  781. 

Order   Concerning  Application   for   Receiver  and   Extending 
Time  to  Ans^ver,  etc. 

The  District  Court  of  the  United  States  for  the  Dis- 
trict of . 

*     The   A.   B.    Trust   Company,    Complainant, 

vs. 
The   C.    &   D.    Railway   Company   and    the 
E.  &  F.   Railway  Company,   Defendants. 

And  now,  on  this  day  of  ,  A.  D.  ,  in  pur- 
suance of  the  stipulation  of  the  parties  hereto,  it  is  now  by 
the  court  here  ordered  that  the  further  hearing  of  the  appli- 
cation for  the  appointment  of  a  receiver  in  this  case  shall 
stand  over  until  such  date  as  mav  be  fixed  in  a  written  notice 


RECEIVERS ORIGINAL   PROCEEDINGS.  1147 

to  be  served  by  the  complainants,  at  least  twenty  days  before 
the  date  so  fixed,  or  such  shorter  time  as  may  be  allowed  as 
notice.  In  event  of  an  application  by  any  otker  person  for 
the  appointment  of  a  receiver  of  said  property,  and  until 
the  further  order  of  the  court,  and  notwithstanding  the  filing 
of  the  bill  of  complaint  or  any  order  heretofore  made,  or 
this  order,  the  E.  &  F.  Railway  Company  may  continue  to 
operate,  under  the  existing  lease  thereof,  the  railroad  and 
property  of  the  C.  &  D.  Railway  Company,  and  shall  have 
and  enjoy  all  rights  and  privileges  under  said  lease  as  fully 
and  completely  as  if  the  bill  of  complaint  herein  had  not  been 
filed,  or  the  order  of  June  9  or  this  order  been  made. 

And  it  is  further  ordered  that  until  further  order  of  the 
court  the  management,  operation  and  control  by  the  North- 
ern Railroad  Company  of  its  railroad  and  property,  and  the 
disposition  and  control  of  its  revenues  by  the  said  Northern 
Railroad  Company,  shall  so  be  and  remain  the  same  as  if 
said  bill  of  complaint  had  not  been  filed,  or  any  order  here- 
tofore or  this  order  been  made. 

And  it  is  further  ordered  that  the  time  within  which  de- 
fendants may  file  answers  in  this  case  be  and  the  same  is 
hereby  extended  for  the  period  of  sixty  days  from  the  date 
of  this  order. 


No.  782. 
Entry  of  Appearance  and  Answer. 

[Caption.] 

And  now  comes  the  C.  D.  Co.,  defendant  in  the  above 
entitled  cause,  and  waives  the  issuing  and  service  of  sub- 
poena, and  enters  its  appearance  herein,  and  admits  that  the 
several  statements  and  charges  of  said  bill  of  complaint  are 
true.  Y.  &  Y., 

Attorneys  for  the  C.  D.  Co. 


1148  SUITS   IN   EQUITY, 

No.  783. 

Petition  for  the  Appointment  of  a  Receiver  and  for  an  Order 
of  Court  Directing  the  Production  of  Oil  &  Gas  from  the 
Real  Property  Involved  in  this  Suit. 

[Caption.] 

Come  now  the  complainant  herein,  the  United  States  of 
America,  and  the  above-named  defendants,  Bessie  Wildcat, 
a  minor;  Santa  Watson,  as  guardian  of  Bessie  Wildcat,  a 
minor;  Cinda  Lowe,  Louisa  Fife,  Annie  Wildcat  and  Emma 
West,  Martha  Jackson,  a  minor;  Saber  Jackson,  as  guardian 
and  next  friend  of  Martha  Jackson,  a  minor;  J.  Coody  John- 
son and  Black  Panther  Oil  &  Gas  Company,  a  corporation, 
and  H.  B.  Beeler,  being  all  the  parties  to  this  action  who 
have  asserted  herein  an  interest  in  the  land  which  forms  the 
subject-matter  hereof,  to-wit: 

Northwest  quarter  of  section  9,  township  18  north,  range 
7  east,  in  Creek  county,  Oklahoma, 
and  represent  to  the  court  that  the  said  land  is  of  the  proper 
value  of  many  thousands  of  dollars,  and  that  its  value  con- 
sists mainly  of  the  deposits  of  oil  and  gas  which  lie  there- 
under; that  when  these  deposits  of  oil  and  gas  are  extracted 
the  value  of  the  land  will  be  almost  wholly  destroyed;  that 
on  the  premises  adjacent  to  and  surrounding  the  said  land 
to-wit,  principally  the  [northwest]  quarter  of  section  8, 
township  18  north,  range  7  east,  there  is  a  large  daily  pro- 
duction of  oil  and  gas,  the  daily  production  of  oil  consisting 
of  several  hundred  barrels ;  that  on  the  said  adjacent  quarter 
of  section  8,  township  18  north,  range  7  east,  there  are  at 
this  time  at  least  three  producing  oil  wells  which  are  located 
within  three  hundred  feet  of  the  boundary  line  of  the  west 
side  of  the  above  described  land  involved  in  this  section ; 
that  from  these  three  wells  there  is  a  present  daily  produc- 
tion of  several  hundred  barrels  of  oil ;  that  there  are  other 
producing  wells  on  the  same  adjacent  quarter  of  section  8, 
township  18  north,  range  7  east,  and  there  are  other  produc- 


RECEIVERS ORIGINAL    PROCEEDINGS.  1149 

ing  wells  on  other  lands  adjacent  to  the  said  land  in  suit; 
that  the  production  of  oil  and  gas  from  the  said  producing' 
wells  on  adjacent  lands  is  causing  a  large  drainage  of  the 
oil  and  gas  from  underneath  the  land  in  suit,  and  is  daily 
and  materially  diminishing  the  value  of  the  land  in  suit  to 
the  very  great  and  irreparable  injury  to  the  parties  to  this 
action ;  that  if  the  production  of  oil  and  gas  from  adjacent 
lands  be  not  offset  by  the  immediate  production  of  oil  and 
gas  from  the  land  in  suit,  the  value  of  the  land  in  suit  will 
be  materially  diminished,  if  not  practically  destroyed;  that 
the  parties  to  this  action  are  without  adequate  remedy  at  law 
to  prevent  the  drainage  of  oil  and  gas  from  underneath  the 
land  in  suit,  [cause]  by  the  production  of  oil  and  gas  from 
the  adjacent  lands ;  that  by  reason  of  these  conditions,  it  is 
of  immediate  and  vital  importance  that  the  production  of  oil 
and  gas  from  the  land  in  suit  be  gone  forward  with  under 
the  direction  and  control  of  this  court  through  a  receiver  to 
be  appointed  by  it  for  that  purpose,  the  proceeds  of  such 
production  to  be  held  by  such  receiver  under  the  order  of 
this  court  pending  the  termination  of  this  action  and  the 
final  adjudication  of  the  ownership  and  right  to  possession 
of  the  said  land,  which  is  at  issue  among  these  petitioners, 
and  also  the  defendant,  H.  B.  Beeler. 

The  said  petitioners  and  the  said  defendant,  H.  B.  Beeler, 
are  all  agreed  that  it  is  to  the  best  interest  of  all  the  parties 
to  this  action  for  the  production  of  oil  and  gas  fron\  the  land 
in  suit  to  be  gone  forward  with  pending  this  action  in  man- 
ner and  form  as  follows,  to-wit: 

That  the  production  of  oil  and  gas  from  said  land  be  pro- 
ceeded with  by  the  said  Black  Panther  Oil  &  Gas  Company, 
a  corporation,  and  that  25  per  cent,  of  the  gross  amount  of 
oil  and  gas  so  produced  therefrom  shall  be  delivered  or  paid 
by  the  said  company  to  a  receiver  to  be  appointed  by  .this 
court,  or  to  such  person  or  corporation  as  the  said  receiver 
may  direct,  the  fund  accruing  from  the  said  royalty  portion 
of  25  per  cent,  to  be  held  by  the  receiver  under  the  direction 
of  this  court,  to  abide  the  result  of  this  action,  and  to  be 


1150  SUITS   IN    EQUITY. 

paid  to  the  party  or  parties  prevailing  herein  as  [their]  in- 
terests may  then  appear;  that  the  claim  and  interest  of  the 
parties  to  this  action  in  and  to  the  oil  and  gas  produced  by 
the  said  Black  Panther  Oil  &  Gas  Company  from  the  said 
land  released  as  to  the  portion  thereof  in  excess  of  the  said 
royalty  portion  of  25  per  cent,  of  the  gross  production ;  that 
the  Black  Panther  Oil  &  Gas  Company  drill  in  good  faith  at 
least  three  wells  on  the  land  in  suit  for  the  purpose  of  offset- 
ting and  to  a  sufficient  depth  and  at  proper  places  to  offset  the 
wells  on  adjacent  lands,  one  of  the  said  three  wells  to  be  com- 
menced within  ninety  days  from  the  date  of  an  agreement 
to  be  entered  into  between  the  said  Black  Panther  Oil 
&  Gas  Company  and  the  said  receiver  as  hereinafter  pro- 
vided for;  another  well  to  be  commenced  within  six  months 
from  the  said  date,  and  the  third  well  to  be  commenced  with- 
in nine  months  from  said  date,  each  of  said  wells  to  be  com- 
pleted within  a  reasonable  time  after  its  commencement  and 
to  be  drilled  to  such  depth  as  may  be  necessary  and  sufficient 
to  protect  the  above  described  tract  of  land  from  being 
drained  by  wells  on  adjoining  lands,  and  as  may  properly 
develop  the  land  in  controversy  to  the  fullest  reasonable  ex- 
tent; that  the  said  Black  Panther  Oil  &  Gas  Company 
promptly  execute  to  the  said  receiver  and  to  his  successor  or 
successors  in  the  receivership  for  the  use  and  benefit  of  the 
parties  in  interest  in  this  action,  a  good  and  sufficient  bond 
in  the  sum  of  $15,000,  to  be  approved  by  the  judge  of  this 
court,  conditioned  that  the  said  Black  Panther  Oil  &  Gas 
Company  faithfully  carry  out  and  perform  all  and  singular 
the  provisions  of  its  agreement  with  the  receiver,  to  be  ex- 
ecuted as  hereinafter  provided  for;  that  the  said  Black  Pan- 
ther Oil  &  Gas  Company  shall  not  claim  or  be  allowed  any 
sum  for  the  expense  of  any  dry  hole  or  holes  drilled  by  it  on 
said -land  and  shall  not  claim  or  be  allowed  any  sum  for  any 
expense  of  any  kind  incurred  by  it  in  carrying  out  its  agree- 
ment to  be  made  with  the  said  receiver  or  in  producing  or 
attempting  to  produce  oil  and  gas  from  the  said  land  except 
its  working  interest  of  75  per  cent,  of  the  oil  and  gas  pro- 


RECEIVERS ORIGINAL   PROCEEDINGS.  1151 

diiced  therefor;  provided  that  at  the  final  termination  of  this 
action  the  Black  Panther  Oil  &  Gas  Company  be  allowed  the 
reasonable  cash  value  of  its  interest  in  the  corporeal  proper- 
ties, such  as  derricks,  machinery,  piping,  casing,  tanks,  etc., 
owned  by  it  and  then  on  the  premises  and  necessary  to  the 
development  of  the  production  of  oil  and  gas  from  the. same; 
but  the  amount  so  to  be  allowed  to  the  Black  Panther  Oil  & 
Gas  Company  shall  in  no  event  exceed  the  amount  of  royalty 
that  has  accrued  in  the  hands  of  the  said  receiver  for  the 
benefit  of  the  prevailing  party  or  parties  to  this  suit;  that  the 
reasonable  cash  value  of  the  said  corporeal  properties  be 
determined  according  to  their  condition  at  the  time  of  the 
termination  of  this  action,  and  the  said  two  persons  shall 
meet  to  consider  and  appraise  the  reasonable  cash  value  of 
the  said  physical  properties,  and  whatever  sum  may  be  agreed 
upon  by  them  shall  be  reported  by  them  in  writing  to  this 
court  and  shall  be  taken  as  such  reasonable  cash  value ;  but 
if  they  be  unable  to  agree  thereon,  the  Black  Panther  Oil  & 
Gas  Company  and  the  said  prevailing  party  or  parties  shall 
report  such  disagreement  to  this  court,  who  shall  thereupon 
appoint  some  fit  and  disinterested  person  as  a  third  ap- 
praiser, and  the  said  three  appraisers  shall  then  meet  and 
consider  such  reasonable  cash  value,  and  the  concurring 
opinion  of  any  two  of  the  three  of  them,  when  reported  in 
writing  to  this  court,  shall  control  and  be  conclusive  as  to 
such  value  between  the  said  Black  Panther  Oil  &  Gas  Com- 
pany and  the  said  prevailing  party  or  parties,  but  any  such 
determination  of  value  shall  always  and  in  any  event  be 
subject  to  the  approval  of  this  court. 

These  petitioners  respectfully  represent  in  conclusion  that 
the  proposed  agreement  between  the  said  Black  Panther  Oil 
&  Gas  Company  and  the  said  receiver  for  the  production  of 
oil  and  gas  from  the  land  in  suit  pending  the  final  deter- 
mination of  this  action  is  a  fair  and  equitable  plan  conducive 
to  the  best  interests  of  all  the  parties  hereto,  and  the  peti- 
tioner. Black  Panther  Oil  &  Gas  Company,  by  signing  this 
petition,  signifies  its  acceptance  of  the  proposed  plan  and  its 


1152  SUITS   IN   EQUITY. 

willingness  and  readiness  to  enter  into  such  an  agreement 
with  the  said  receiver  as  is  proposed  thereby,  and  to  execute 
the  bond  in  the  sum  and  of  the  kind  described  to  insure  its 
faithful  performance  of  the  provisions  of  such  agreement. 

Premises  considered,  the  said  petitioners  pray  the  court  to 
appoint  some  fit  person  as  receiver  .in  this  action  who  shall 
be  empowered  to  take  into  his  official  charge  and  custody  the 
above  described  tract  of  land  involved  in  this  suit  and  all 
improvements  now  thereon ;  that  said  receiver  be  required  to 
enter  into  a  good  and  sufficient  bond  of  such  kind  and  in 
such  sum  of  may  be  directed  and  approved  by  this  court, 
conditioned  for  the  faithful  performance  of  any  order  of  the 
court  with  respect  to  the  disposition  or  disbursement  of  the 
funds  in  his  hands  or  under  his  control  as  such  receiver : 
that  he  be  authorized  and  directed  by  order  of  this  court  to 
enter  into  a  formal  agreement  with  the  said  Black  Panther 
Oil  &  Gas  Company  for  the  development  of  tlie  land  in  suit 
and  the  production  of  oil  and  gas  therefrom  by  the  said 
Black  Panther  Oil  &  Gas  Company  during  the  pendency  of 
this  action,  in  the  manner  and  form  above  outlined  and  pro- 
vided for;  that  he  be  authorized  and  directed  to  require  and 
take  from  the  said  Black  Panther  Oil  &  Gas  Company  to 
run  to  himself  and  his  successor  or  successors  in  the  receiver- 
ship for  the  use  and  benefit  of  the  parties  in  interest  in  this 
action  a  good  and  sufficient  bond  in  the  sum  of  $15,000,  to 
be  approved  by  the  judge  of  this  court,  conditioned  that  the 
said  Black  Panther  Oil  &  Gas  Company  will  faithfully  carry 
out  and  perform  all  and  singular  tlie  provisions  of  its  agree- 
ment with  him ;  that  the  said  receiver  be  authorized  to  re- 
ceive and  collect  and  be  charged  with  the  duty  of  receiving 
and  collecting  from  the  said  Black  Panther  Oil  &  Gas  Com- 
pany a  full  25  per  cent,  of  gross  amount  of  all  the  oil  and 
gas  produced  by  the  said  company  or  any  person  acting  for 
it  from  the  said  land,  and  that  he  be  further  authorized  and 
directed  to  make  such  examinations  of  the  books  and  records 
of  the  said  Black  Panther  Oil  &  Gas  Company  as  he  may 


RECEIVERS ORIGINAL    PROCEEDINGS.  1153 

deem  necessar)''  to  enable  him  to  perform  properly  his  duty 
as  such  receiver,  and  that  he  be  further  authorized  and  di- 
rected to  report  promptly  any  failure  on  the  part  of  the  said 
Black  Panther  Oil  &  Gas  Company  to  deliver  to  him  or  un- 
der his  order  a  full  25  per  cent,  of  the  gross  amount  of  all 
the  oil  and  gas  produced  from  the  said  land,  or  the  proceeds 
thereof,  or  any  other  failure  of  the  said  company  to  perform 
its  several  undertakings  to  and  agreements  with  him ;  that 
he  be  further  authorized  and  directed  to  release  the  said 
Black  Panther  Oil  &  Gas  Company,  and  its  assigns,  if  and 
so  long  as  the  provisions  of  the  agreement  to  be  entered  into 
between  himself  and  the  said  Black  Panther  Oil  &  Gas  Com- 
pany are  faithfully  and  punctually  performed  by  the  said 
company,  the  working  interest  in  the  oil  and  gas  produced 
by  the  said  company  from  the  land  in  suit;  that  is  to  say, 
all  of  the  oil  and  gas  so  produced  in  excess  of  the  royalty 
portion  of  one-fourth  of  the  gross  amount  of  production; 
that  the  said  receiver  be  further  required  and  directed  to 
hold  and  safely  keep  in  whatever  manner  this  court  may 
deem  proper  the  fund  accruing  in  his  hands  as  such  receiver, 
subject  to  be  disbursed  only  under  an  order  of  this  court 
regularly  made. 

The  joining  of  these  petitioners  in  this  petition  shall  not 
be  taken  or  construed  as  a  recognition  by  any  one  of  them 
of  the  interest  or  any  other  one  of  them  in  the  land  in  suit, 
being  solely  for  the  purpose  of  bringing  about  the  conserva- 
tion of  the  value  of  the  property  in  suit  and  the  deposits  of 
all  oil  and  gas  thereunder. 

The  United  States  of  America, 

Complainant, 
By  C.  C.   H.,  Assistant  United   States  Attorney,   Its 
Solicitor  of  Record. 

,  Defendants, 

By  R.  and  T.,  Solicitors. 


1154  SUITS   IN    EQUITY. 

No.  784. 
Order  Appointing  Temporary  Receiver. 
[Caption.] 

This  cause  came  on  to  be  heard  this  29th  clay  of  Augnst, 
1916,  and  was  argued  by  counsel,  and  upon  consideration, 
the  court  being  fully  advised  in  the  premises,  it  is  ordered, 
adjudged  and  decreed : 

1.  That  James  H.  Hustis,  a  resident  of  Winchester,  Mas- 
sachusetts, be  and  he  hereby  is  appointed  temporary  receiver 
of  all  the  railroads,  lands,  property,  assets,  rights  and  fran- 
chises of  the  Boston  and  Maine  Railroad  as  incorporated  un- 
der the  laws  of  Massachusetts  and  as  incorporated  under  the 
laws  of  New  Hampshire  and  as  incorporated  under  the  laws 
of  Maine,  including  all  railroads  and  other  property,  assets, 
real,  personal  and  mixed,  of  whatever  kind  or  description 
and  wherever  situated,  owned,  leased  or  operated  by  said 
Boston  and  Maine  Railroad,  with  all  tracks,  terminal  facili- 
ties, warehouses,  offices,  stations,  shops  and  all  other  build- 
ings in  the  premises  of  whatever  kind,  and  all  locomotives, 
cars  and  other  rolling  stock  and  equipment  of  whatever  kind 
or  description,  and  all  tools,  machinery,  furniture,  fixtures, 
coal,  materials  and  supplies  and  all  books  of  account,  records 
and  other  books,  papers,  cash  in  bank,  and  all  other  moneys, 
all  debts,  things  in  action,  credits,  stocks,  bonds,  securities, 
debts,  leases,  contracts,  bills  receivable,  rents,  issues,  profits 
and  income  accruing  and  to  accrue,  as  well  as  all  leasehold 
interest,  operating  and  all  other  contracts  and  all  rights,  in- 
terests, easements,  privileges  and  franchises  of  said  Boston 
and  Maine  Railroad,  and  all  other  assets  of  every  kind  and 
description. 

2.  That  said  receiver  be  and  he  hereby  is  directed  immedi- 
ately to  take  possession  of  all  said  railroad's  rolling  stock, 
franchises,  property  and  premises,  and  to  run,  manage,  main- 
tain and  operate  said  railroad  and  property  wherever  situated 
and    found,   whether   in   this   commonwealth,    judicial   circuit 


RECEIVERS ORIGINAL    PROCEEDINGS.  1155 

or  elsewhere,  including  such  railroads  and  property  as  the 
said  Boston  and  Maine  Railroad  holds,  controls  or  operates 
under  lease  or  otherwise,  and  to  use,  manage  and  conduct 
said  business  in  such  manner  as  in  his  judgment  will  produce 
the  best  results,  and  to  this  end  to  exercise  the  authority  and 
franchises  of  said  Boston  and  Maine  Railroad,  and  to  dis- 
charge all  the  public  duties  obligatory  upon  it  and  to  pre- 
serve said  railroad's  property  in  proper  condition  and  repair 
and  to  manage  and  operate  said  railroad's  property  accord- 
ing to  the  requirements  of  the  valid  laws  of  the  several  states 
in  which  the  same  are  situated,  and  to  employ,  discharge  and 
fix  the  compensation  of  all  officers,  attorneys,  managers, 
superintendents,  agents  and  employes;  and  to  keep  such  prop- 
erty insured  to  such  an  extent  as  the  receiver  may  deem  ad- 
visable; to  continue  and  carry  on  such  pension  systems  in 
respect  to  officers  and  employes  of  the  said  Boston  and  Maine 
Railroad  as  the  receiver  may  deem  advisable;  to  collect  and 
receive  the  income  and  bills  of  said  property  and  to  collect 
all  outstanding  or  accruing  accounts,  things  in  action  and 
credits  due  or  owing  to  the  said  Boston  and  Maine  Railroad, 
and  to  hold  and  retain  the  net  revenues  thereof  in  such 
manner  and  to  the  end  that  the  same  may  be  applied  under 
this  order  and  such  orders  as  this  court  may  hereafter  make, 
3.  That  all  persons,  firms  and  corporations  having  in  their 
possession  any  of  said  property  and  premises  of  which  a 
receiver  is  hereby  appointed  shall  deliver  such  property  and 
premises  to  said  receiver,  and  each  and  every  of  the  officers, 
directors,  agents  and  employes  of  said  Boston  and  Maine 
Railroad  be  and  they  are  hereby  required  and  commanded 
forthwith  to  deliver  and  turn  over  to  said  receiver  or  his 
duly  constituted  representative  any  and  all  books  of  account, 
vouchers  and  papers,  debts,  leases  and  contracts,  bills,  notes, 
accounts,  moneys,  or  other  property  in  their  hands  or  under 
their  control  belonging  to  or  in  the  possession  of  said  Boston 
and  Maine  Railroad  to  which  it  is  or  may  become  entitled, 
and  each  of  said  officers,  directors,  agents  and  employes  is 
hereby  commanded  and  directed  to  abide  by  and  conform  to 


1156  SUITS    IN    EQUITY. 

such  orders  as  may  be  given  from  time  to  time  by  said  re- 
ceiver or  his  duly  constituted  representative  in  conducting 
the  operation  of  said  property  and  in  the  discharge  of  his 
duties  as  receiver. 

4.  That  the  said  Boston  and  Maine  Railroad  and  the 
officers,  directors,  agents,  attorneys  and  employes  of  said 
corporation  and  all  other  persons  claiming  under  and  by 
virtue  of  said  railroad  company,  and  all  other  persons,  firms 
and  corporations  whatsoever  and  wheresoever  situated,  located 
or  domiciled,  are  hereby  restrained  and  enjoined  from  inter- 
fering with,  attaching,  levying  upon,  or  in  any  manner  what- 
soever disturbing  any  operation  of,  the  property  or  premises 
of  which  a  receiver  is  hereby  appointed  or  in  taking  posses- 
sion thereof,  or  in  any  way  interfering  with  the  same  or  any 
part  thereof  or  in  interfering  in  any  manner  to  prevent  the 
discharge  by  said  receiver  of  his  duties,  and  this  order  shall 
apply  not  only  to  property  on  possession  of  said  Boston  and 
Maine  Railroad,  but  to  all  the  reversions  and  remainders 
thereof. 

5.  The  receiver  shall  within  ten  days  from  the  date  of  this 
order  file  herein  a  bond  for  $100,000,  with  a  surety  or  sure- 
ties approved  by  a  judge  or  a  clerk  of  this  court,  conditioned 
that  he  will  fulfill  and  perform  his  duties  herein,  and  in  any 
ancillary  proceedings  wherein  he  may  be  appointed,  well  and 
truly  to  account  for  all  money  and  property  coming  into  his 
hands  as  such  receiver  and  perform  all  things  which  he  is 
herein  or  may  hereafter  directed  to  perform  in  this  cause, 
or  in  any  ancillary  proceeding  wherein  he  is  ancillary  re- 
ceiver. 

6.  The  said  receiver  shall  within  ninety  days  file  with  the 
court  an  inventory  of  the  property  coming  into  his  posses- 
sion as  such  receiver.  The  said  receiver  shall  forthwith  open 
books  of  account  and  cause  to  be  kept  therein  due  and  proper 
account  of  the  earnings  and  expenses,  receipts  and  disburse- 
ments of  the  railroad  property  of  which  he  is  appointed  re- 
ceiver, and  shall  preserve  proper  vouchers  for  all  payments 
made   by   him    on    account    thereof,    and    shall    deposit    the 


RECEIVERS ORIGINAL   PROCEEDINGS.  1157 

moneys  coming  into  his  hands  in  some  bank  or  banks,  re- 
porting to  the  court  the  bank  or  banks  so  selected,  and  shall 
make  to  the  court  at  least  once  in  six  months  a  report  of  all 
receipts  and  expenses.  Such  accounts  may  in  the  discretion 
of  the  receiver  be  kept  in  such  manner  as  to  show  the  re- 
ceipts from  each  of  the  railroad  properties  under  direct  lease 
to  the  defendant  and  the  expenditures  on  account  of  each 
said  property. 

7.  That  the  receiver  is  hereby  authorized  at  his  discretion 
from  time  to  time  out  of  the  funds  coming  into  his  hands  to 
pay  all  taxes  due  or  becoming  due  from  the  said  Boston  and 
Maine  Railroad  upon  the  property  above  described,  or  any 
of  it,  any  expense  of  printing  or  sending  out  customary  re- 
ports on  the  road,  and  to  pay  the  expenses  of  operating  said 
properties  and  executing  the  trust,  and  to  pay  the, wages  and 
salaries  of  all  officers,  attorneys,  managers  and  superintend- 
ents, agents  or  employes  employed  or  retained  by  the  said 
receiver,  and  any  pay-rolls,  salaries,  vouchers,  supply  ac- 
counts, operating  or  other  current  charges  heretofore  in- 
curred within  six  months  last  past  and  now  unpaid,  and  also 
to  make  any  payments  which  he  may  deem  necessary  or 
advisable  under  any  contract  heretofore  entered  into  for  the 
maintenance  and  equipment  of  any  railroad  owned  or  oper- 
ated by  said  Boston  and  Maine  Railroad,  and  also  to  make 
such  payments  of  interest  on  any  bonds  issued  or  assumed 
by  the  said  railroad  as  may  in  his  judgment  be  necessary  to 
prevent  the  prior  maturing  of  the  principal  of  said  bonds. 

8.  The  said  receiver  is  authorized  until  the  further  order 
of  this  court  to  make  from  income  accrued  or  hereafter  ac- 
cruing such  payments  and  to  do  and  perform  such  other  acts 
and  things  as  he  may  deem  necessary  or  expedient  to  pre- 
serve, or  prevent  the  forfeiture  of,  and  lease,  leasehold 
estate,  contract  or  contract  right  now  vested  in  or  belonging 
to  the  said  Boston  and  Maine  Railroad;  but  no  such  pay- 
ment or  act  on  the  part  of  such  receiver  shall  operate  as  an 
election  on  his  part  to  assume  the  obligation  of  any  such 
lease  or  contract,  or  accept  or  become  vested  with  any  such 


1158  SUITS   IN    EQUITY. 

leasehold  estate  or  contract  right,  nor  shall  any  such  pay- 
ment or  act  on  the  part  of  the  receiver  operate  to  charge  the 
obligation  of  any  such  lease  or  contract  upon  the  interest 
which  any  party  to  this  suit  may  have  in  the  estate  in  the 
hands  of  said  receiver.  The  court  reserves  the  right  here- 
after to  direct  said  receiver  to  surrender  and  reject,  or  to 
adopt  and  assume  any  lease,  leasehold  estate,  contract  or 
contract  rights  now  vesting  in  or  belonging  to  the  said 
Boston  and  Maine  Railroad,  and  no  such  lease,  leasehold 
estate,  contract  or  contract  rights  shall  be  taken  as  adopted 
by  said  receiver  or  as  chargeable  upon  him  or  upon  the 
interest  of  any  party  herein  to  the  estate  in  his  hands  except 
as  hereafter  expressly  ordered  by  the  court. 

9.  That  said  receiver  be  and  he  hereby  is  authorized  to 
institute  and  prosecute  within  this  commonwealth  and  else- 
where and  in  his  name  as  receiver,  or  in  the  name  of  the 
said  Boston  and  Maine  Railroad,  all  such  suits  as  may  be 
advised  by  counsel  for  the  proper  protection  of  said  prop- 
erty and  the  discharge  of  the  trust,  and  to  prosecute  to  final 
judgment  or  to  compromise  as  may  be  in  his  judgment  ad- 
visable all  pending  suits  brought  by  or  in  behalf  of  said 
Boston  and  Maine  Railroad,  and  likewise  to  defend,  com- 
promise or  settle  all  actions  pending  or  instituted  against 
the  said  Boston  and  Maine  Railroad,  but  no  payment  shall 
be  made  by  said  receiver  in  respect  to  any  of  such  suits  other 
than  suits  relating  to  wages  of  employes,  personal  injuries 
or  damages  to  property  in  transit,  or  damages  caused  by 
fire  in  the  operation  of  said  railroad,  without  the  order  or 
direction  of  the  judge,  and  no  action  taken  in  defense  of  any 
such  action  or  suit  against  said  Boston  and  Maine  Railroad 
shall  have  the  effect  of  establishing  any  claims  upon  the 
right  in  the  property  or  funds  in  the  possession  of  the  re- 
ceiver or  to  alter  or  change  the  existing  equities  or  legal 
rights  of  the  parties. 

10.  That  said  receiver  shall  retain  possession  and  con- 
tinue to  discharge  the  duties  or  trusts  aforesaid  until  the 
further    order    of   this    court    and    shall    from    time    to   time 


RECEIVERS ORIGINAL   PROCEEDINGS.  1159 

make  report  of  his  doings  in  the  premises  and  from  time  to 
time  may  apply  to  this  court  for  such  other  and  further  or- 
ders and  directions  as  he  may  deem  requisite  to  the  due 
administration   of   his   trust. 

11.  The  complainant  herein  is  authorized  to  apply  to  any 
other  court  to  obtain  jurisdiction  for  such  order  or  orders  in 
the  premises  as  the  complainant  may  deem  necessary  to 
carry  out  any  of  the  orders  issued  by  this  court.  The  right 
is  reserved  to  the  parties  hereto  to  apply  to  the  court  for 
any  other  or  further  instructions  to  said  receiver,  and  this 
court  reserves  the  right  to  make  such  further  orders  as 
may  be  proper  and  to  modify  this  order  and  in  all  respects 
to  regulate  and  control  the  conduct  of  said  receiver. 

W.  L.   Putnam, 

(Date  of  entry.)  Circuit  Judge. 

No.  785. 

Order  Appointing  Receiver  for  a  Railway,  (1) 
[Caption.] 

Upon  reading  and  considering  the  verified  bill  in  this 
cause,  together  with  the  evidence  adduced,  on  motion  of 
counsel  for  the  plaintiff,  the  defendant  having  been  duly  no- 
tified to  appear  by  its  counsel,  it  is  ordered  by  the  court  that 
S.  M.  be  and  is  hereby  appointed  receiver  of  this  court  of  all 
and  singular  the  property,  assets,  rights,  and  franchises  of 
the  C.  &  D.  Railway  Company  described  in  the  bill  of  com- 
plaint herein,  wherever  situated,  including  all  the  railroad 
tracks,  terminal  facilities,  real  estate,  warehouses,  offices, 
stations,  and  all  other  buildings  and  property  of  every  kind 
owned,  held,  possessed,  or  controlled  by  said  company,  to- 
gether with  all  other  property  in  connection  therewith,  and 
all  moneys,  choses  in  action,  credits,  bonds,  stocks,  lease- 
hold interests,  operating  contracts,  and  other  assets  of  ev- 
ery kind,  and  all  other  property,  real,  personal,  and  mixed, 
held  or  possessed  by   it,   to  have   and   to  hold  the  same  as 


1160  SUITS   IN    EQUITY. 

the  officer  of  and  under  the  orders  and  directions  of  the 
court. 

The  said  receiver  is  hereby  authorized  and  directed  to 
take  immediate  possession  of  all  and  singular  the  property 
above  described,  wherever  situated  or  found,  and  to  con- 
tinue the  operation  of  the  railroad  of  said  company,  and  to 
conduct  systematically,  in  the  same  manner  as  at  present, 
the  business  and  occupation  of  carrying  passengers  and 
freight,  and  the  discharge  of  all  the  duties  obligatory  upon 
said   company. 

And  said  C.  &  D.  Railway  Company,  and  each  and  every 
of  its  officers,  directors,  agents,  and  employes  are  hereby  re- 
quired and  commanded  forthwith  to  turn  over  and  deliver 
to  such  receiver  or  his  duly  constituted  representative  any 
and  all  books  of  accounts,  vouchers,  papers,  deeds,  leases, 
contracts,  bills,  notes,  accounts,  money,  or  other  property 
in  his  or  their  hands  or  under  his  or  their  control,  and  they 
are  hereby  commanded  and  required  to  obey  and  conform  to 
such  orders  as  may  be  given  them  from  time  to  time  by  the 
said  receiver  or  his  duly  constituted  representative  in  con- 
ducting the  said  railway  and  business,  and  in  discharging 
his  duty  as  such  receiver;  and  they  and  each  of  them  are 
hereby  enjoined  from  interfering  in  any  way  whatever  with 
the  possession  or  management  of  any  part  of  the  business 
or  property  over  which  said  receiver  is  so  appointed,  or  from 
in  any  way  preventing  or  seeking  to  prevent  the  discharge 
of  his  duties  as  such  receiver.  Said  receiver  is  hereby  fully 
authorized  to  continue  the  business  and  operate  the  railway 
of  said  company,  and  manage  all  its  property  at  his  discre- 
tion in  such  manner  as  will,  in  his  judgment,  produce  the 
most  satisfactory  results  consistent  with  the  discharge  of  the 
public  duties  imposed  on  said  company,  and  to  collect  and 
receive  all  income  therefrom  and  all  debts  due  said  com- 
pany  of  every  kind,  and  for  such  purpose  he  is  hereby  in- 
vested with  full  power  at  his  discretion  to  employ  and  dis- 
charge and  fix  the  compensation  of  all   such  officers,  coun- 


RECEIVERS ORIGINAL   PROCEEDINGS.  1161 

sel,    managers,    agents,    and    employees   as    may   be    required 
for  the   proper   discharge  of   the   duties   of  his   trust. 

And  said  receiver  is  directed  to  deposit  the  moneys  com- 
ing into  his  hands  in  some  bank  or  banks  in  the  city  of 
,  ,  and  to  report  his  selection  to  the  court. 

Said  receiver  is  hereby  fully  authorized  and  empowered 
to  institute  and  prosecute  all  such  suits  as  may  be  necessary, 
in  his  judgment,  to  the  proper  protection  of.  the  property 
and  trust  hereby  vested  in  him,  and  likewise  defend  all 
actions  instituted  against  him  as  receiver,  and  also  to  appear 
in  and  conduct  the  prosecution  or  defense  of  any  and  all 
suits  or  proceedings  now  pending  in  any  court  against  said 
company,  the  prosecution  or  defense  of  which  will,  in  the 
judgment  of  said  receiver,  be  necessary  and  proper  for  the 
protection  of  the  property  and  rights  placed  in  his  charge, 
and  for  the  interest  of  the  creditors  and  stockholders  of 
said   company    (2). 

Said  receiver  is  hereby  required  to  give  bond  in  the  sum 
of  $100,000.00,  with  security  satisfactory  to  this  court,  for 
the  faithful  discharge  of  his  duties,  and  is  also  required  to 
make  and  file   full   reports  in  this  court  quarterly. 

And  the  court  reserves  the  right  by  orders  hereinafter  to 
be  made,  to  direct  and  control  the  payment  of  all  supplies, 
materials,  and  other  claims,  and  to  in  all  respects  regulate 
and  control  the  conduct  of  said  receiver.  J.   S., 

District    Judge. 

And  thereupon  came  in  open  court  said  S.  M..  and  ac- 
cepted such  appointment,  and  was  thereupon  duly  sworn 
according  to  law,  and  tendered  his  bond  as  required  by  said 
order,  with  W.  P.  and  C.  J.  as  sureties  therein,  which  bond 
is   hereby   approved    and    accepted. 

(1)  This  order  may  be  and  is  frequently  made  by  a  judge  in 
chambers.  Walters  v.  Trust  Co.,  50  Fed.  316;  Wood  v.  Oregon  Devel 
Co.,  55  Fed.  901,  after  suit  pending  but  not  before  bill  is  filed.  Greene 
V.  Star  Cash  and  Package  Car  Co.,  99  Fed.  656;  In  re  Brant,  96  Fed. 
257. 

As  to  what  the  order  should  contain.     See  Bates'  Fed.  Eq.,  Sec.  594. 

(2)  As  to  the  rights  of  a  receiver  to  sue.  See  Beach's  Modern  Eq. 
Prac,  Sees.  742  and  743. 


1162  SUITS  IN   EQUITY. 

No.  786. 

Order  Appointing  a  Receiver  for  a  Railroad  (Another  Form). 

The  District  Court  of  ihe  United  States   for  the  Dis- 
trict of  . 


The    A.    B.    Trust    Company,    Trustee, 

Complainant, 

vs. 

The    C.    &    D.    Railway   Company,    and 

the    E.    &    F.     Railway    Company, 

Defendants. 


^  In    Equity. 


In  this  cause  an  order  was  duly  made  on  the  day  of 

-,  that  the  complainant's  application  for  a  receiver  be  and 


is  sustained,  and  that  the  further  hearing  of  such  application 

stand  over  until  the  day  of  ,  and  that  the  rights 

of  all  parties  be  then  heard  on  the  merits  of  said  applica- 
tion, as  will  more  fully  appear  by  reference  to  said  order; 

and    on   the   day    of   • ,   under   stipulations    of    the 

parties,  the  court  ordered  that  the  further  hearing  of  the 
application  for  the  appointment  of  a  receiver  in  said  cause 
shall  stand  over  until  such  date  as  should  be  fixed  by  writ- 
ten notice  as  particularly  specified  in  such  order;  and  pur- 
suant thereto  notice  has  been  duly  given,  fixing  this  the 
day  of  ,   for   such  hearing. 

Now  on  this  day  of  ,  comes  the  A,   B.   Trust 

Company,  trustee,  complainant,  by  X.  &  X.,  its  solicitors ; 
and  also  come  the  defendants,  the  C.  &  D.  Railway  Com- 
pany, by  Y.  &  Y.,  its  counsel;  the  E.  &  F.  Railway  Com- 
pany, by  B.   P.,   its   solicitor. 

And  thereupon  came  on  for  hearing  upon  the  bill  of  com- 
plaint, answer,  exhibits  and  affidavits  the  said  application  of 
the  said  A.  B.  Trust  Company  for  the  appointment  of  a 
receiver,  which  application  is  not  resisted  by  the  E.  &  F. 
Railway  Company,  but  is  resisted  by  the  C.  &  D.  Railway 
Company,  and  the  same  having  been  argued  by  counsel  and 


RECEIVERS ORIGINAL    PROCEEDINGS.  1163 

considered  by  the  court,  it  is  now  hereby  ordered,  adjudged 
and  decreed  that  S.  M.  and  H.  C.  be  and  they  are  hereby 
appointed  receivers  of  the  property  of  the  C.  &  D.  Railway 
Company  covered  by  the  mortgages  made  by  the  said  com- 
pany which  are  sought  to  be  foreclosed  in  the  bill  of  the 
A.  B.  Trust  Company,  complainant,  with  the  following- 
powers   and    instructions,   to   wit : 

First.   Said   receivers  are  hereby  directed  to   take,   on   the 

■  day  of  ,  possession  of  all  of  the  said  mortgaged 

property,  and  to  operate  and  cause  to  be  operated  the  said 
railroads  mortgaged  as  aforesaid,  as  herein  provided,  and  to 
preserve  and  protect  all  of  the  said  mortgaged  property, 
acting  in  all  things  under  the  order  of  this  court,  or  of  such 
other  courts  as  may  entertain  jurisdiction  of  parts  of  the 
said  mortgaged  property  as  ancillary  to  the  jurisdiction  of 
this    court. 

Second.  The  said  receivers  also,  in  like  manner,  shall, 
until  otherwise  ordered,  pay  all  rentals  accrued,  or  which 
may  hereafter  accrue,  upon  all  leased  lines  of  the  C.  &  D. 
Railway,  and  for  the  use  of  all  terminals  or  track  facilities, 
and  all  such  rentals  or  installments  as  may  fall  due  from 
the  said  company  for  the  use  of  any  portion  of  the  road  or 
roads  or  terminal  facilities  of  any  other  company  or  com- 
panies, and  also  all  sums  of  money  due  or  to  become  due 
for  rolling  stock  or  for  steel,  iron,  ties,  or  other  materials, 
for  the  maintenance  of  way  or  construction,  sold  or  con- 
tracted to  be  sold  to  or  for  the  benefit  of  the  C.  &  D.  Rail- 
way Company.  And  it  appearing  to  the  court  that  the 
C.    &    D.    Railway    Company    has    commenced    or    promoted 

the    construction    of    a    branch    railroad    from   ,    in   the 

state  of  ,   to   or   towards*  ,   in   said   state,   and   has 

expended  a  very  considerable  sum  of  money  thereon,  and 
that  the  company  constructing  said  road  is  under  a  statu- 
tory obligation  to  complete  and  equip  at  least  ten  miles  of 

the  same  prior   to   the  day  of  ;   and   upon   such 

completion  the  said  C.  &  D.   Railway  Company  will  be  en- 


1164  SUITS    IN    EQUITY. 

titled  to  certain  stocks  and  bonds,  and  upon  failure  so  to 
complete  will  forfeit  all  of  the  corporate  franchises  and 
rights  belonging  to  said  branch  railroad ;  wherefore,  the  re- 
ceivers are  authorized,  if  in  their  judgment  it  shall  be  to 
the  best  interests  of  all  parties  concerned,  to  build  and 
equip  the  said  ten  miles  of  said  road,  and  in  all  respects  to 

comply  with  tlie  statutory  requirements  of  the  state  of  

in  relation  thereto. 

Third.  And  the  said  receivers  are  also  authorized  to  de- 
fend any  actions  pending  or  which  may  be  brought  seek- 
ing to  establish  claims,  liens  or  demands  against  the  said 
company  or  its  property,  and  to  prosecute  or  continue  any 
action  already  brought  against  any  corporation  or  party  for 
the  recovery  of  any  money  or  property  due  to  the  said 
C  &  D.   Railway  Company. 

Fourth.  Said  receivers  shall  also  pay,  out  of  any  income 
or  revenues  which  may  come  into  their  hands,  all  just  claims 
and  accounts  for  labor,  supplies,  professional  services,  sala- 
ries of  officers  and  employees  remaining  unpaid,  and  that 
have  been  earned  or  have  matured  within  three  months 
prior  to  the  said  day  of  . 

Fifth.  The  matter  of  the  payment  of  balances  due  or  to 
become  due  to  other  railroads  or  transportation  companies, 
growing  out  of  the  exchange  of  traffic,  is  reserved  for  fur- 
ther orders. 

Sixth.  The  said  receivers  are  further  ordered  and  directed 
to  pay  all  taxes  on  the  said  mortgaged  property  as  the  same 
shall  mature,  and  also  all  the  current  expenses  in  the  oper- 
ation and  maintenance  of  the  said  road,  and  to  collect  all 
the  revenues  thereof. 

Seventh.  The  said  receivers  are  further  ordered  and  di- 
rected to  keep,  or  cause  to  be  kept,  such  accounts  as  may 
be  necessary  to  show  the  sources  from  whicli  all  the  in- 
come and  revenues  shall  be  derived,  with  reference  to  the 
interest  of  all  the  parties  to  each  of  the  mortgages  men- 
tioned   in    the   complainant's   bill. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1165 

Eighth.  The  receivers  shall  report  to  this  court  from  time 
to  time,  at  least  once  in  three  months,  their  doings  under 
this  order,  and  they  may  apply  to  this  court  for  instruc- 
tions whenever   necessary. 

Ninth.  The  said  receivers,  before  entering  on  their  du- 
ties, shall  each  take  and  subscribe  an  oath  to  perform  them 
faithfully,  and  with  one  or  more  sureties,  approved  by  this 
court  or  any  judge  thereof,  shall  execute  an  undertaking  to 
the  clerk  of  said  court,  for  the  benefit  of  whom  it  may  con- 
cern, in  the  penal  sum  of  two  hundred  thousand  ($200,000) 
dollars,  conditioned  to  the  effect  that  he  will  faithfully  dis- 
charge the  duties  of  receiver  herein,  and  obey  the  court. 

Tenth.  It  is  further  ordered  that  all  parties  having-  in 
their  possession  any  of  the  said  mortgaged  property  shall, 
upon  written  demand  of  said  receivers,  yield  up  and  de- 
liver said  property  to  them,  and  the  complainant  and  de- 
fendants are  and  each  of  them  is  authorized  to  apply  to 
any  other  Circuit  Court  of  the  United  States  of  competent 
jurisdiction  for  such  other  order  or  orders  in  aid  of  the 
primary  jurisdiction  vested  in  this  court,  in  said  cause,  as 
may   have   ancillary    jurisdiction    herein. 

Eleventh.  And  it  appearing  to  the  court  that  certain 
bonds  and  stocks  claimed  to  be  the  property  of  the  said  de- 
fendant, the  C.  &  D.  Railway  Company,  are  now  in  the 
possession  of  the  A.  B.  Trust  Company,  the  complainant 
herein,  it  is  ordered  that  said  A.  B,  Trust  Company  retain 
the  possession  of  said  property  until  the  further  order  of 
this  court,  unless  the  surrender  thereof  shall  be  duly  or- 
dered by  some  court  of  competent  jurisdiction.  ' 

To  all  of  which  orders  and  appointments  the  C.  &  D. 
Railway   Company,    defendant,   objects   and   excepts. 

(1)  This  order  was  entered  in  the  case  Mercantile  Trust  Co.  v. 
Missouri,  Kansas  &  Texas  Ry.  Co.,  pending  in  the  circuit  court  of  the 
United  States  for  the  district  of  Kansas. 


1166  SUITS  IN   EQUITY. 

No.  787. 
Order  Appointing  Receivers  of  Kansas  Natural  Gas  Company. 

[Caption.] 

And  now,  October  9,  1912,  this  cause  came  on  for  fur- 
ther hearing  upon  the  bill  of  complaint  filed  and  upon  the 
answer  of  the  respondent,  under  its  corporate  seal  and 
sworn  to  by  its  President  and  Secretary,  admitting  and 
confessing  the  truth  of  all  statements,  averments  and  charges 
in  the  bill  contained,  and  also  the  right  of  the  complainant 
to  the  relief  prayed  for,  and  joining  in  the  prayer  of  the 
complainant  for  the  appointment  of  a  Receiver,  and  waiving 
all  notice  of  the  application  therefor;  the  complainant  ap- 
pearing by  his  solicitor,  Charles  Blood  Smith,  Esq.,  of  To- 
peka,  Kansas,  and  the  respondent  by  its  solicitor,  John  J, 
Jones,  of  Chanute,  Kansas.  And  the  Court  being  fully  ad- 
vised  of   the   premises, 

It  is  now  ordered,  adjudged  and  decreed: 

First.  That  Conway  F.  Holmes,  George  F.  Sharitt,  and 
Eugene  Mackey  be  and  they  are  now  and  hereby  appointed 
Receivers  of  all  and  singular  the  assets,  lands,  tenements 
and  hereditaments  of  the  respondent,  the  Kansas  Natural 
Gas  Company,  and  all  of  its  property,  real,  personal  and 
mixed,  of  every  nature  and  kind,  wheresoever  situate  in 
this  Eighth  Judicial  Circuit,  including  all  pipe  lines,  com- 
pressor stations,  pumps,  machinery,  appliances,  fittings  and 
equipment  belonging  to  or  connected  therewith;  and  all 
oil  and  gas  mining  lands,  leases  and  leaseholds  and  the 
wells,  derricks,  drain  pipe,  casing,  tubing,  machinery,  ap- 
pliances and  equipment  thereon  connected  therewith  or  be- 
longing thereto  and  all  leases,  contracts,  stocks,  bonds,  ob- 
ligations, choses  in  action,  accounts  and  rights,  owned  by, 
belonging  to,  or  due  to  the  defendant  company;  and  all 
rights,  franchises,  income  and  profits  granted  to,  acquired 
by  or  belonging  to  the  defendant  company. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1167 

Second.  That  each  of  the  Receivers  shall,  before  enter- 
ing upon  his  duties  hereunder,  give  and  file  with  the  Court 
a  bond  in  the  penal  sum  of  $25,000.00  with  surety  or  sure- 
ties approved  by  this  Court  or  the  Clerk  thereof,  and  con- 
ditioned that  he  will  faithfully  perform  his  duty  as  Receiver 
herein  and  in  any  ancillary  proceedings  wherein  he  may 
be  appointed  and  well  and  truly  account  for  any  and  all 
moneys  or  property  coming  into  his  hands  as  such  Re- 
ceiver, and  abide  and  perform  all  things,  which  he  is 
herein  or  may  hereafter  be  directed  to  perform  in  this 
cause  or  in  any  ancillary  proceedings  wherein  he  is  ancil- 
lary  Receiver, 

Third.  That  upon  the  filing  and  approval  of  the  said 
bonds,  the  said  Receivers  (or  each  of  them  as  fast  as  his 
respective  bond  is  filed  and  approved)  be  and  they  are 
hereby  authorized,  empowered  and  directed  to  take  im- 
mediate possession  of  all  and  singular  the  pipe  lines,  com- 
pressor stations,  leases  and  other  property  above  described 
or  referred  to,  wherever  the  same  may  be  situate  or  be 
found,  and,  until  the  further  order  of  this  Court,  to  con- 
tinue the  operation  of  the  present  pipe  line  system  and 
natural  gas  business  of  the  defendant  company  and  every 
part  or  portion  thereof,  and  to  run,  manage,  conduct  and 
operate  such  pipe  lines  and  property  as  the  defendant  com- 
pany holds,  controls  or  operates  under  leases,  contracts  ar- 
rangements or  otherwise.  All  of  which  is  to  be  done,  until 
the  further  order  of  the  Court,  as  heretofore  done,  run  or 
operated  by  the  defendant  Company;  but 

The  Court  expressly  reserves  to  itself  the  right  to  pass 
upon,  approve,  disapprove,  disavow  and  cancel  any  and  all 
leases,  arrangements  and  contracts  of  every  nature,  kind 
and  description,  under  or  by  virtue  of  which,  the  defend- 
ant company  has  been  or  is  now  operating  any  of  its  leased 
lines  and  property;  or  selling  or  furnishing  any  of  its  gas 
for  distribution  and  sale;  or  buying  and  acquiring  any  gas 
for  use  and  transportation  through   its  operated   lines;  and 


1168  SUITS   IN   EQUITY. 

no  such  lease,  arrangement  or  contract  shall  be  regarded  as 
binding  or  taken  by  the  Receivers,  until  expressly  ordered 
by  this  Court  in  these  proceedings;  and  nothing  herein  con- 
tained shall  be  considered  or  taken  as  in  any  way  accept- 
ing, approving,  satisfying  or  adopting  any  such  lease,  ar- 
rangement   or    contract. 

The  Receivers  shall  exercise  all  such  powers  as  are  usu- 
ally exercised  by  Receivers  and  all  such  as  are  necessary  or 
convenient  to  the  proper  conduct  by  them  of  the  business  of 
the  [defendant]  corporation  and  they  shall  discharge  all 
such  duties  as  are  within  the  line,  scope  or  purpose  of  their 
appointment 

Fourth.  That  the  defendant  corporation  and  each  and 
every  of  its  officers,  directors,  agents  and  employes  and  all 
other  persons,  associations  and  corporations  are  now  and 
hereby  ordered,  commanded  and  directed  to  turn  over  and 
deliver  to  such  Receivers  or  their  duly  constituted  repre- 
sentatives any  and  all  of  the  pipe  lines,  compressor  sta- 
tions, books  of  account,  records,  vouchers,  deeds,  leases, 
contracts,  agreements,  notes,  accounts,  moneys,  stock,  bonds, 
obligations  and  property  of  every  nature  and  kind,  real, 
personal  and  mixed,  now  in  or  which  may  hereafter  come 
into  his  or  their  hands,  control  or  possession;  and 

That  the  defendant  corporation  and  each  and  every  of  its 
said  ofhcers,  directors,  agents  and  employes  and  all  other 
persons,  associates  and  corporations  are  now  and  hereby 
ordered,  commanded  and  directed  to  obey  and  conform  to 
such  orders  as  may  be  given  to  them  from  time  to  time  by 
such  Receivers  (or  their  duly  constituted  representatives), 
in  conducting  the  operations  of  the  said  business,  and  in 
discharging  their  labors  and  duties  as  such   Receivers;   and 

That  the  defendant  corporation  and  each  and  every  of  its 
said  officers,  directors,  agents  and  employes  and  all  other 
persons,  associations  and  corporations  be  and  they  are  now 
and  hereby  restrained  and  enjoined  during  the  pendency 
of  this  cause  and  the  administration  of  the  said   Receivers, 


RECEIVERS ORIGINAL    PROCEEDINGS.  1169 

from  transferring,  selling,  disposing  of  or  [interferring] 
with  any  of  the  said  pipe  lines,  compressor  stations,  and 
property  of  the  defendant  corporation ;  and  from  taking 
possession  of  or  in  any  way  interfering  with  the  same  or 
any  part  thereof:  and  from  disturbing,  preventing  or  in 
any  way  interfering  with  the  Receivers  in  their  possession, 
control,  operation  or  management  of  the  property,  or  any 
part  thereof,  of  the  defendant  company  over  which  the 
said  Receivers  are  hereby  appointed  as  such ;  and  from  dis- 
turbing, preventing  or  in  any  way  interfering  with  the  Re- 
ceivers  in   the  discharge   of  their   duties   hereunder. 

Fifth.  The  Receivers,  in  operating,  conducting  and  man- 
aging the  pipe  line  system  and  business  of  the  defendant 
company  are  (until  the  further  order  of  this  Court)  hereby 
authorized  and  empowered : 

(a)  To  manage  and  operate  the  said  lines  and  business 
of  the  company  in  such  manner  as  will,  in  their  judgment, 
produce  the  most   satisfactory  results. 

(b)  To  collect  and  [receiver]  all  income  from  the  prop- 
erty and  business  and  all  debts,  accounts,  choses  in  action 
and  revenue,  due  the  defendant  company  or  its  business. 

(c)  To  employ  and  discharge  and  fix  the  compensation 
of  all  such  officers,  counsel,  attorneys,  accountants,  man- 
agers, superintendents,  auditors  and  employes  as  are  in  the 
judgment  of  the  Receivers  deemed  necessary  to  aid  in  the 
discharge  of  their   duties. 

(d)  To  institute  and  prosecute  such  suits  as  may  be  nec- 
essary, in  the  judgment  of  the  Receivers,  to  protect  the 
property  and  trusts  hereby  vested  in  them  and  to  likewise 
defend  all  such  suits  and  actions  as  may  be  instituted 
against  them  as  such  Receivers  and  also  to  assume  and 
take  the  prosecution  or  defense  of  any  and  all  suits  now 
pending  against  the  defendant  company,  the  prosecution  or 
defense  of  which  will,  in  the  judgment  of  the  said  Re- 
ceivers, be  necessary  for  the  proper  protection  of  the  prop- 
erty placed   in   their   charge. 


1170  SUITS   IN    EQUITY. 

(e)  To  keep  the  property  of  the  defendant  company, 
hereby  placed  in  their  possession  and  control,  insured  in 
the  same  manner  and  to  the  same  extent  as  it  was  insured 
by  the  company  itself  or  in  the  judgment  of  the  Receivers 
may  deem  fit  and  proper. 

(f)  To  preserve  the  trust  property  in  good  order  and 
condition,   making   all   needed   repairs    thereon. 

(g)  To  vote  or  cause  to  be  voted  any  and  all  stock 
owned  by  the  company  in  any  underlying  or  subsidiary  cor- 
poration. 

(h)  To  have  the  record  herein  printed,  at  the  expense 
of  the  trust,  *  *  *  copies  of  the  bill,  answer  and  this 
decree  to  be  for  distribution  among  bondholders  and  stock- 
holders  of  the  defendant  company. 

Sixth.  That,  until  further  order  of  this  Court,  the  Re- 
ceivers shall  out  of  and  from  the  income  and  revenue  com- 
ing into  their  hands,  pay  and  discharge: 

(a)  All  the  expenses  of  the  receivership  and  of  the  op- 
eration and  maintenance  of  the  pipe  lines,  leases  and  prop- 
erties, including  all  taxes  and  charges  in  the  nature  thereof 
lawfully    imposed    upon    the    property. 

(b)  All  debts  lawfully  contracted  by  the  defendant  com- 
pany for  current  operating  expenses,  material  and  supplies, 
since  September  1,  1912,  including  the  wages,  salaries  and 
expenses  of  officers,  attorneys,  managers,  superintendents, 
agents,   servants  and  employes. 

Seventh.  That  the  Receivers  prosecute  and  complete  the 
laying  and  construction  of  all  pipe  lines  of  the  company 
now  under  way;  the  removal  and  re-construction  of  all  pipe 
lines  and  compressor  stations  now  under  way;  the  drilling 
of  all  oil  and  gas  [well-]  now  being  drilled;  the  taking  and 
securing  of  oil  and  gas  mining  leases,  now  being  negotiated 
for;  the  making  of  contracts  for  the  purchase  of  natural 
gas  from  producers  thereof,  to  the  end  that  as  full  a  supply 
of  gas,  as  possible,  may  be  secured  for  the  coming  winter; 
but  no  contract  for  the  purchase  of  gas  shall  be  finally  en- 


RECEIVERS — ORIGINAL   PROCEEDINGS.  1171 

tered  into  and  signed  by  the  Receivers,  until  first  presented 
to  and  approved  by  this  Court.  Out  of  and  from  the  in- 
come and  revenue  coming  into  their  hands,  the  Receivers 
shall  pay  all  cost  and  expenses  of  such  betterments  and  im- 
provements, including  therein  any  balances  due  contractors, 
laborers,  workmen,  employes  and  materialmen  falling  due 
before   or  after  the   appointment   of  the   Receivers. 

Eighth.  That  the  Receivers  take  and  acquire  such  new 
oil  and  gas  mining  leases  and  drill  such  new  wells  and 
enter  into  such  new  contracts  for  the  purchase  of  gas  as 
in  their  judgment  they  may  deem  best  and  proper,  but  be- 
fore any  such  contracts  for  the  purchase  of  gas  shall  be- 
come efifective,  they  shall  be  first  submitted  to  and  be  ap- 
proved by  this  Court. 

Ninth.  That  the  Receivers  acquaint  themselves  at  once 
with  the  extent  and  condition  of  the  company's  affairs,  suits 
and  property  and  within  two  weeks  from  the  date  hereof 
make  and  file  with  this  court  a  full  and  detailed  report,  in 
triplicate,   giving:^ 

(a)  The  size,  number,  length,  character,  cost  and  con- 
dition of  the  company's  owned   and  leased   lines. 

(b)  The  number,  area,  character  and  location  of  the 
company's   oil   and   gas   mining   leases. 

(c)  The  conditions  under  which  the  company  secures  its 
supply   of  gas  and  the  cost   thereof. 

(d)  The  prices  which  it  realizes  for  the  gas  it  sells  and 
copies   of   the   contracts    with    the    distributing   companies. 

(e)  The  terms  and  conditions  under  which  [its]  oper- 
ates its  leased  lines  and  property  and  copies  of  the  operat- 
ing leases. 

(f)  Any  and  all  other  information,  which  the  Court 
should  have  for  a  full  understanding  of  the  company's  af- 
fairs and  busmess. 

(g)  A  list  of  the  Company's  officers,  managers,  superin- 
tendents, auditors  and  major  [employess],  showing  the  ser- 
vices and  duties  of  each  and  the  salaries  received. 


1172  SUITS    IN    EQUITY. 

(h)  The  supply  of  gas  which  is  available  to  tlie  com- 
D^^y   from  all   sources. 

(i)  A  review  of  the  Kansas  and  Oklahoma  gas  fields, 
showing  their  extent,  size,  condition  and  worth. 

(j)  The  Receivers'  suggestions  as  to  the  value  of  the 
company's  leases  and  contracts,  both  for  operating  lines 
and  furnishing  gas  to  the  local  distributing  companies  in 
the  several  cities  reached  by  the  operated  lines  of  the  de- 
fendant company  and  the  advisability  of  disapproving  and 
disavowing   any   or   all  of   them. 

(k)  The  nature,  extent  and  cost  of  the  betterments  now 
being  carried  on  by  the  company  and  the  probable  ability 
of  the  Receivers  to  pay  for  the  same  out  of  the  receipts 
from  the  sale  of  gas  and  the  suggestions  of  the  Receivers 
as  to  the  advisability  of  issuing  receivers'  certificates  to 
complete  the  said  work. 

Tenth.  That  a  person  selected  by  the  Receiver  be  and  he 
is  hereby  appointed  the  attorney  and  counsel  for  the  Re- 
ceivers, at  such  salary  as  may  be  hereafter  allowed  him  by 
the  Court. 

Eleventh.  That  the  Receivers  on  January  1,  1913,  and 
quarterly  thereafter  until  the  further  order  of  this  court, 
file  itemized  reports  showing  their  receipts  and  disburse- 
ments. 

Twelfth.  That  any  bondholder  or  creditor  of  the  de- 
fendant company,  now  or  hereafter  represented  by  com- 
plainant's counsel,  may  be  hereafter  filing  herein  a  pleading 
so  to  do,  become  a  party  complainant  herein,  with  the 
same  force  and  effect  as  if  he  had  joined  in  the  original 
bill. 

Thirteenth.  Full  right  and  power  are  hereby  expressly 
reserved  by  the  Court  to  make  such  other  and  further  or- 
ders herein  as  it  may  hereafter  from  time  to  time  deem 
necessary   or   proper. 

Fourteenth.  The  bill  herein  having  been  filed  for  and  on 
behalf  of  all  bondholders  of  the  company,  and  these  proceed- 


RECEIVERS ORIGINAL   PROCEEDINGS.  1173 

ings  being  instituted  for  the  benefit  of  all  creditors  of  the 
company,  the  costs  of  this  proceeding,  including  the  bill  of 
the  solicitor  for  the  complainant,  shall  be  paid  by  the  receiv- 
ers out  of  the  trust  funds.  The  bill  of  the  said  solicitor  to 
be  first  approved  and  allowed  by  this  court. 

Fifteenth.  That  a  copy  of  the  bill  of  complaint  filed  herein 
be  by  the  parties  to  this  suit  exhibited  to  and  filed  with  each 
and  every  trustee  in  any  trust  deed  or  mortgage  now  exist- 
ing on  any  property  of  defendant,  and  file  proof  of  same  in 
this  case,  also  file  herein  a  certified  copy  of  any  and  all  such 
trust  deeds  and  mortgages  within  seven  days  from  this  date. 

Done  this  9th  day  of  October.  1912.  at  Kansas  City,  Kan- 
sas. John    C.    Pollock, 

Ralph    E.    Campbell, 

Judges. 


No.  788. 

Order  Appointing  Receiver  with  Power  to  Collect  Rents. 

[Caption.] 

This  cause  came  on  this,  the day  of ,  for  orders. 

upon  the  application  of  complainant  for  the  appointment  of  a 
receiver  of  the  property  involved  herein,  whereupon  it  was 
ordered  and  decreed  by  the  court  that  M.  L.  be  and  is  here- 
by appointed  receiver  of  said  property,  being  premises  lot 
No.  5,  Stephenson  subdivision  of  county  lot  512,  north  side 
of  Alabama  street.  45>4  by  242  feet,  and  occupied  by  S.  P. 
and  J.  P.  He  will  take  possession  of  said  property  and  rent 
it  out  from  month  to  month.  The  clerk  of  the  court  will 
issue  to  him  a  copy  of  this  order,  as  evidence  of  his  author- 
ity, and  if  possession  is  refused  him  under  this  order,  the 
clerk  will  issue  a  writ  of  possession  to  the  marshal,  com- 
manding him  to  put  said  receiver  in  full  and  peaceable  pos- 
session of  said  premises.  Said  M.  L.  will  execute  a  receiv- 
er's bond  in  the  penalty  of  $ ,  with  one  surety,  con- 
ditioned to  account  for  any  rents  coming  into  his  hands  as 


1174  SUITS   IN    EQUITY. 

such  receiver,  and  to  discharge  the  duties  of  such  faithfully. 
It  is  further  ordered  that  said  receiver  will  not  take  posses- 
sion of  the  premises  aforesaid  until  the  expiration  of  ten 
days  from  this  date,  and  in  the  meantime,  if  the  said  defend- 
ants, S.  P.  and  J.  P.,  shall  pay  all  taxes  and  costs  and 
charges  for  the  collection  thereof,  against  said  premises,  and 
remove  all  adverse  claims  imperiling  the  title  of  said  prop- 
erty as  a  security  to  the  Southern  Building  &  Loan  Asso- 
ciation, this  order  appointing  M.  L.  receiver  will  be  vacated 
upon  the  application  of  said  S.  P.  and  J.  P. 


No.  789. 

Order  Extending  the  Receivership. 

The  District  Court  of  the  United  States  for  the  Dis- 
trict of . 

The  A.   B.  Trust  Company,  Trustee,   Complainant, 

vs. 

The  C.  &  D.   Railway  Company  and  the  E.   &  F. 

Railway   Company,   Defendants. 

An  order  was  heretofore  made  in  tliis  suit,  bearing  date 

the day  of ,  A.  D.  ,  and  entered  on  the  

day  of  ,  A.  D.  ,  in  which  and  whereby  it  was  or- 
dered, adjudged  and  decreed  that  S.  M.  and  H.  C.  be  ap- 
pointed receivers  of  the  property  of  the  C.  &  D.  Railway 
Company,  covered  by  mortgages  made  by  the  said  company, 
which  are  sought  to  be  foreclosed  in  the  bill  of  complainant 
herein,  with  the  powers  and  instructions  stated  in  the  said 
order. 

Now,  on  this  day  of  ,  A.  D.  ,  there  comes 

before  me,  the  C.  &  D.  Railway  Company,  one  of  the  above- 
named  defendants,  by  R.  T.,  its  counsel,  and  the  said  the 
E.  &  F.  Railway  Company,  the  other  defendant,  by  R.  Y.. 
its  counsel,  who  appears  in  opposition  to  the  present  applica- 
tion, and  claims  that  the  court  has  no  jurisdiction  to  make 


RECEIVERS ORIGINAL    PROCEEDINGS.  1175 

the  order  as  prayed  for,  or  any  order  in  the  premises;  and 
the  said  S.  M.  and  H.  C,  receivers,  by  H.  S.,  their  counsel. 

And  it  also  appearing  that  the  A.  B.  Trust  Company, 
trustee  and  complainant,  has  received  due  notice  of  this  ap- 
plication, and  has  signified  that  it  does  not  oppose  the  grant- 
ing of  the  relief  prayed  for  by  the  C.  &  D.  Railway  Com- 
pany. 

And  thereupon  came  on  for  hearing  the  said  application 
of  the  defendant,  the  C.  &  D.  Railway  Company,  and  on  its 
said  petition,  and  on  the  affidavit  of  W.  B.  on  the  bill  of 
complaint,  and  all  the  proceedings  in  this  cause,  and  it  fur- 
ther appearing  to  my  satisfaction  that  the  relief  prayed  for 
is  necessary  for  a  full  and  complete  protection  of  the  prop- 
erty covered  by  the  said  mortgage,  and  referred  to  and  de- 
scribed in  the  bill  of  complaint,  and  that  by  reason  of  the 
allegations   contained   in   the   petition   of   the   defendant,   the 

C.  &  D.  Railway  Company,  it  is  entitled  to  the  relief  therein 
prayed  for : 

It  is  now  hereby  ordered,  adjudged  and  decreed  that  the 
receivership  of  the  said  S.  M.  and  H.  C.  be,  and  the  same  is, 
hereby  extended  to  cover  all  interest  and  estate  of  the  C.  & 

D.  Railway  Company  in  the  property  and  assets  described  in 
said  petition,  to-wit :  [Naming  the  property,  as,  ninety-seven 
thousand  two  hundred  and  eighty-four  shares  of  the  capital 
stock  of  the  International  &  Great  Northern  Railroad  Com- 
pany ;  one  thousand  shares  of  the  capital  stock  of  the  Galves- 
ton, Houston  &  Henderson  Railroad  Company;  nine  thou- 
sand nine  hundred  and  sixty-eight  shares  of  the  capital  stock 
of  the  Boomille  Bridge  Company;  one  thousand  and  sixty- 
five  one-thousand-dollar  bonds  of  the  General  Consolidated 
Mortgage,  and  four  hundred  one-thousand  bonds  of  the  Gal- 
veston, Houston  &  Henderson  Railway  Company  of  1882]  ; 
provided,  however,  that  this  order  shall  not  affect  or  impair 
any  rights,  legal  or  equitable,  in  respect  to  said  property,  of 
either  the  parties  to  this  suit,  or  of  any  other  person  whom- 
soever, existing  at  the  time  of  the  entry  of  this  order,  and 


1176  SUITS   IN    EQUITY. 

shall  not  affect  the  rights,  legal  or  equitable,  of  any  other 
person  or  corporation  having  in  custody  any  of  said  prop- 
erty, or  any  part  thereof  heretofore  existing,  under  any  claim 
of  right  as  against  the  C.  &  D.  Railway  Company  or  its 
receivers;  and  the  parties  now^  in  possession  of  said  property 
shall  hold  the  same  subject  to  any  legal  or  equitable  rights 
of  the  parties  hereto,  for  the  use  and  benefit  of  said  receivers, 
■subject  to  the  further  order  of  this  court,  or  of  any  court 
having  ancillary  jurisdiction  herein. 

Nothing  herein  contained  shall  be  construed  as  an  admis- 
sion by  the  said  the  C,  &  D.  Railway  Company,  or  the  said 
receivers,  of  the  validity  of  any  of  the  said  liens,  or  claims, 
or  of  the  amount  claimed  to  be  due  thereon. 

Nothing  herein  contained  is  intended  to  affect  in  any  man- 
ner the  franchises  of  the  said  corporation,  or  its  right  to  con- 
tinue and  maintain  its  organization. 

The  said  receivers  are  further  ordered  and  directed  to 
keep  such  accounts  as  may  be  necessary  to  show  any  prop- 
erty or  assets,  the  title  to  which  may  be  vested  in  them 
under  this  order,  to  the  end  that  the  just  rights  of  all  parties 
having  claims,  rights,  liens  or  demands  against  the  said 
property  or  assets,  or  against  the  said  company,  may  here- 
after be  adjudicated  and  determined  by  this  court,  or  any 
other  court  having  ancillary  jurisdiction  thereof,  and  the 
said  property  and  assets  applied  in  conformity  with  such 
adjudications. 

The  said  receivers,  before  entering  upon  their  duties,  shall 
take  and  subscribe  an  oath  to  perform  them  faithfully,  and 
with  one  or  more  sureties  approved  by  this  court,  or  any 
judge  thereof,  shall  execute  an  undertaking  to  the  clerk  of 
said  court  for  the  benefit  of  whom  it  may  concern  in  the 
penal  sum  of  two  hundred  thousand  dollars,  conditioned  to 
the  effect  that  they  will  faithfully  discharge  the  duties  of 
receivers  under  this  order  and  under  the  orders  of  this  court. 

The  complainant  and  the  defendant,  the  C.  &  D.  Railway 
Company,  are  and  each  of  them  is  authorized  to  apply  to  any 
Other  United  States  circuit  of  competent  jurisdiction  as  may 


RECEIVERS ORIGINAL    PROCEEDINGS.  1177 

have  ancillary  jurisdiction  herein,  for  such  order  or  orders 
in  aid  of  the  primary  jurisdiction  vested  in  this  court  as  may 
be  necessary. 

To  the  above  order  the  E.   &  F.   Railway  Company  duly 
excepts. 


No.  790. 

Order  to  File  Amendment  and  Extending  Receivership. 

[Caption.'] 

This  cause  came  on  to  be  heard  this  day  of  — 


upon  the  application  of  the  plaintiff  for  leave  to  file  its 
amendment  to  its  bill  of  complaint  filed  herein  heretofore 
in  this  cause : 

Whereupon,  the  court  being  fully  advised  thereof,  said 
application  is  hereby  granted,  and  the  clerk  of  the  court  is 
directed  to  file  the  same  as  of  the  date  of  this  order.  And 
upon  application  of  the  plaintiff  it  is  further 

Ordered  and  decreed  that  the  receivership  of  S.  M.  and 
H.  C,  appointed  under  a  decree  heretofore  made  in  this  cause, 
be  and  the  same  is  hereby  extended  to  and  over  all  the  rail- 
way and  property  of  the  defendants  [name  the  raikuays  un- 
der the  control  of  the  defendants  over  zvhich  the  receivership 
is  extended]  ;  and  that  the  said  S.  M.  and  H.  C.  be  and  they 
are  hereby  appointed  receivers  of  all  said  railways  and  the 
properties  thereof,  with  all  the  powers  and  authorities  men- 
tioned in  and  subject  to  all  the  terms  and  conditions  of  said 
decree  appointing  them  receivers  in  this  suit. 

And  the  said  receivers  are  hereby  authorized  to  defend  any 
action  pending,  or  which  may  be  brought,  seeking  to  estab- 
lish claims,  liens  or  demands  against  the  C.  D.  Company  and 
the  above-named  railway  companies,  or  either  of  them,  or  the 
property  of  either  of  them,  and  to  prosecute  any  action  al- 
ready brought  against  any  corporation  or  person  for  the  re- 
covery of  any  moneys  or  property  due  said  railway  company 
or  either  of  them.  A.  P., 

District  Judge. 


1178  SUITS    IN    EQUITY. 

No.  791. 

Order  Appointing  Receiver  for  a  Manufacturing  Corporation. 

[Caption.] 

Upon  reading  and  filing-  the  verified  bill  of  complaint  in 
this  cause,  together  with  the  verified  affidavits  of  J.  W.  and 
G.  L.,  and  the  exhibits  in  support  thereof,  and  on  motion  of 
the  counsel  for  plaintiff,  and  counsel  for  defendant  appear- 
ing and  consenting  thereto,   it  is  ordered  by  the  court  that 

E.  Y.,  of ,  in  the  state  of ,  and  C  L.,  of  ,  in 

the  state  of ,  be  and  they  are  hereby  appointed  receivers 

of  this  court  of  all  and  singular  the  property  of  the  N.  C. 
Co.  of  every  description,  and  all  money,  claims  in  actions, 
credits,  bonds,  stocks,  leasehold  interests  or  operating  con- 
tracts, and  other  assets  of  every  kind,  and  all,  other  property, 
real,  personal  or  mixed,  held  or  possessed  by  said,  company, 
to  have  and  to  hold  the  same  as  officers  of  and  under  the 
orders  and  directions  of  this  court. 

The  said  receivers  are  hereby  authorized  and  directed  to 
take  immediate  possession  of  all  and  singular  the  property 
above  described,  and  to  continue  the  business  of  said  com- 
pany. 

Each  and  every  of  the  officers,  directors,  agents  and  em- 
ployes of  said  N.  C.  Company  are  hereby  required  and  com- 
manded forthwith,  upon  demand  of  the  said  receivers,  to 
turn  over  and  deliver  to  such  receivers  any  books,  papers, 
moneys,  or  deeds,  or  property,  or  vouchers  for  the  property, 
under  their  control. 

The  said  N.  C.  Company  and  its  officers  are  hereby  di- 
rected immediately  to  execute  and  deliver  to  the  said  receiv- 
ers deeds  of  all  real  estate  now  owned  or  possessed  by  said 
company,  and  transfers  and  assignments  of  all  their  property. 

Said  receivers  are  hereby  fully  authorized  to  institute  and 
prosecute  all  such  suits  as  they  may  deem  necessary,  and  to 
defend  all  such  actions  instituted  against  them  as  such  re- 
ceivers, and  also  to  appear  in  and  conduct  the  prosecution  or 
defense  of  any  suits  against  the  said  N.  C.  Company. 


'  RECEIVERS ORIGINAL    PROCEEDINGS.  1179 

The  said  receivers  are  hereby  authorized  and  directed  out 
of  the  moneys  coming  into  their  hands  to  pay  and  discharge 
all  amounts  due  to  employes  upon  the  current  pay-roll. 

Each  of  the  said  receivers  is  required  to  file  with  the  clerk 
of  the  court  within  ten  days  from  date  a  proper  bond,  the 
sureties  to  be  approved  by  the  clerk  of  this  court,  in  the  penal 
sum  of dollars. 

All  creditors  of  said  N.  C.  Company  are  hereby  enjoined 
from  in  any  way  intermeddling  with  the  property  hereby 
directed  to  be  turned  over  to  said  receivers;  and  all  officers, 
directors  and  agents  of  said  N.  C.  Company  are  hereby  en- 
joined from  interfering  with  or  disposing  of  said  property  of 
said  N.  C.  Company  in  any  way,  except  to  transfer,  convey 
and  turn  over  the  same  to  said  receivers.  J.  S., 

District  Judge. 

[If  the  receivers  appear  in  open  court  at  the  time  the  order 

is  made,  an  entry  like  that  appearing  at  the  end  df  No.  

should  he  made.     When  the  receivers  appear  and  accept  the 
appointment  later,  an  entry  shoidd  be  made  stating  such  fact.] 


No.  792. 

Motion  to  Require  Clerk  of  District  Court  Appointing  a  Re- 
ceiver to  File  Certified  Copy  of  Bill  and  Order  in  Other 
Districts. 

[Caption.] 

Now  comes  your  complainant  and  respectfully  represents 
as  follows: 

That  on  the  22d  day  of  August,  1916,  it  filed  in  this  court 
the  above  entitled  bill  of  complaint  against  the  defendant; 
that  thereafter  on  the  29th  day  of  August,  1916,  the  judge 
of  this  court  entered  an  order  therein  appointing  James  H. 
Hustis,  of  Winchester,  Massachusetts,  temporary  receiver  of 
all  property  of  the  defendant,  including  property  within  the 
districts  of  Maine  and  New  Hampshire  in  this  circuit. 


1180  SUITS   IN    EQUITY.  ' 

Wherefore,  your  complainant,  acting  under  section  56  of 
the  judicial  code  of  the  United  States,  respectfully  prays  that 
the  clerk  of  this  court  be  ordered  to  transmit  to  the  clerk  of 
the  district  court  of  the  United  States  for  the  district  of  New- 
Hampshire  and  to  the  clerk  of  the  district  court  of  the 
United  States  for  the  district  of  Maine,  each,  a  certified 
copy  of  the  bill  of  complaint  in  this  cause  and  the  order  of 
the  court  thereon  appointing  James  H.  Hustis  temporary  re- 
ceiver, to  be  duly  filed  and  entered  in  each  of  said  district 
courts;  and  further,  that  the  »lerk  of  this  court  be  ordered 
to  transmit  to  each  of  said  clerks  for  filing  in  each  of  said 
courts  certified  copies  of  each  and  every  order  of  this  court 
in  the  above  entitled  cause  hereafter  made  affecting  the  prop- 
erty of  the  defendant  within  the  district  of  such  court. 
Intercontinental  Rubber  Company, 

By  B.  B.  J.,  its  Solicitor. 

[  Clerk's  Certificate.  ] 


No.  793. 

Order  Concerning  Resignation  of  Receiver. 

[Caption.] 

Now^  comes  Eugene  Mackey,  a  receiver  herein,  and  tenders 
his  resignation  in  writing,  which  the  court  accepts.  And  on 
final  account  and  the  approval  of  his  accounts  he  will  be  ex- 
onerated. And  for  such  purposes,  as  to  him,  the  said  Mackey, 
the  case  is  continued. 

A  certified  copy  of  this  order  will  be  by  the  clerk  of  this 
court  forthwith  sent  to  the  district  court  of  the  eastern  dis- 
trict of  Oklahoma.  This  court  reserves  the  power  and  right 
to  appoint  such  successor,  one  or  more,  as  may  seem  to  the 
court  to  be  right. 

It  is  now  and  here  in  open  court  ordered  that  all  objections 
to  finally  exonerating  said  Mackey  and  his  bondsmen  from 
further  responsibility  or  liability  herein  be  filed  in  writing 
with  the  clerk  of  this  court  on  or  before  five  (5)  days  from 


RECEIVERS ORIGINAL    PROCEEDINGS.  1181 

this  date,  and  if  not  filed  within  said  time  all  claims  against 
him,  the  said  Mackey,  will  be  conclusively  deemed  as  waived. 
And  if  objections  thereto  or  claims  against  him,  the  said 
Mackey,  are  made,  the  same  are  to  be  heard  as  soon  after 
the  same  are  filed  as  the  court  can  hear  them. 
Done  in  open  court  this  January  21,  1914. 

(Signed)  A.  B.,  Judge. 


No.  794. 

Order  Accepting  Resignation  of  One  Co-Receiver,  Making 
Other  Sole  Receiver,  etc.,  Property  Being  in  Three  Judi- 
cial Districts.  (1) 

[Caption.] 

Now  at  this  time  the  cases  above  entitled  come  on  for 
further  consideration,  and  the  court  being  advised  accepts 
the  verbal  resignation  of  Conway  F.  Holmes,  one  of  the 
receivers  herein. 

It  is  ordered  that  the  said  Conway  F.  Holmes  and  George 
F.  Sharitt,  the  two  receivers  herein,  file  a  report  duly  verified 
of  all  their  doings  and  that  the  same  be  filed  on  or  before 
March  23,  1914.  It  is  further  ordered  that  any  and  all  ob-. 
jections  to  said  report  by  any  party  in  interest  shall  be  filed 
within  five  days  thereafter. 

It  is  further  ordered  that  the  said  report  of  said  receivers 
and  the  said  objections  thereto,  if  any,  are  referred  to  Wash 
Adams,  Esq.,  of  Kansas  City,  Missouri,  as  master,  to  audit 
and  pass  upon  the  same  and  make  his  report  to  this  court 
with  all  deliberate  speed.  And  when  the  said  report  shall  be 
approved,  he,  the  said  Conway  F.  Holmes,  shall  stand  dis- 
charged from  all  further  liabilities  in  said  cases  and  the  sure- 
ties on  his  bond  be  fully  exonerated. 

It  is  further  ordered  that,  until  the  further  order  of  this 
court,  he,  the  said  George  F.  Sharitt,  shall  be  the  sole  re- 
ceiver herein  for  the  district  of  Kansas,  for  the  western  dis- 
trict of  Missouri,  and  for  the  eastern  district  of  Oklahoma, 


1182  SUITS   IN    EQUITY. 

under  the  orders  of  said  United  States  district  courts  for  said 
three  districts. 

It  is  further  ordered  that  he,  the  said  George  F.  Sharitt, 
vShall  prosecute  his  duties  for  said  three  districts  with  all  dili- 
gence and  properly  conserve  tlie  property  and  interests  here- 
tofore, now  and  hereafter  entrusted  to  him  as  the  only  and 
sole  receiver. 

It  is  further  ordered  that  he,  the  said  George  F.  Sharitt, 
sole  receiver,  shall  collect  for  gas  purchased  by  the  St.  Joseph 
Gas  Company  at  the  city  of  St.  Joseph,  Missouri;  by  the 
Kansas  City  Gas  Company  at  Kansas  City,  Missouri;  the 
Joplin  Gas  Company  at  Joplin,  Missouri,  and  all  other  pur- 
chases and  consumers  within  the  state  of  Missouri.  And  the 
said  concerns  within  the  state  of  Missouri  shall  pay  to  him, 
the  said  George  F.  Sharitt,  all  sums  for  all  gas  purchased  or 
consumed  by  them,  or  any  of  them,  within  the  state  of  Mis- 
souri, which  shall  include  all  gas  heretofore  purchased  or  con- 
sumed, or  that  may  be  hereafter  purchased  or  consumed,  by 
any  of  said  parties  within  the  state  of  Missouri. 

It  is  further  ordered  that  the  date  of  March  20,  1914,  here- 
tofore fixed  for  further  hearing  in  these  cases,  be  and  the 
same  is  liereby  vacated,  and  in  lieu  thereof  it  is  hereby  or- 
dered that  the  said  further  hearing  be  fixed  and  is  hereby 
fixed  for  Monday,  March  23,  1914,  at  nine  o'clock  in  the 
forenoon,  at  Kansas  City. 

It  is  further  ordered  that  at  said  hearing  above  designated, 
March  23,  1914,  the  receivers  of  the  district  court  of  Mont- 
gomery county,  Kansas,  or  any  other  party  in  interest,  be 
and  they  are  hereby  granted  permission  to  make  application 
for  an  order  or  orders  directing  the  receivers  of  this  court  to 
turn  over  moneys  to  them,  the  said  receivers  of  the  district 
court  of  Montgomery  county,  Kansas,  or  to  any  other  parties 
in  interest. 

Done  and  ordered  of  record  this  March  12,  1914. 

Smith  McPherson,  Judge. 

(1)  Judicial  Code,  Sec.  56,  relates  to  a  case  where  the  property 
involved  lies  in  several  judicial  districts.  See  Pipe  Line  Co.  v.  Fidelity, 
etc.,  Co.,  217  Fed.  187,  133  C.  C.  A.  181. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1183 

No.  795. 

Order  to  Receivers  Concerning  Collection,  Deposit  and 

Checking  Out  Moneys. 
[Caption.l 

It  is  further  ordered  that  the  Kansas  City  Gas  Company, 
of  Kansas  City,  Missouri,  at  once  pay  to  the  receivers  of  this 
court  on  account  the  sum  of  $809,541.65. 

It  is  further  ordered  that  the  Wyandotte  County  Gas  Com- 
pany pay  on  account  to  the  receivers  of  this  court  the  sum  of 
$199,463.54.  The  balances,  if  any  due  to  the  receivers  here- 
in, shall  be  subject  to  further  adjustment. 

Failing  to  pay  such  sums  to  the  receivers  at  once,  the 
receivers  shall  bring  said  company  before  the  court  obtaining 
jurisdiction  over  each  and  both  said  gas  companies  and  all 
such  moneys  as  well  as  all  other  moneys  by  said  receivers 
hereafter  received,  shall  by  said  receivers  be  forthwith  de- 
posited in  equal  sums  approximately  in  the  following  banks 
and  not  elsewhere,  namely:  The  First  National  Bank  of  Kan- 
sas City,  Missouri ;  The  Pinoeer  Trust  Company  of  Kansas 
City,  Missouri ;  The  National  Bank  of  the  Republic  of  Kan- 
sas City,  and  the  Merchants'  National  Bank  of  Topeka,  Kan- 
sas; said  receivers  shall  deposit  such  moneys  and  the  whole 
thereof  to  their  credit,  subject  to  check,  bearing  interest  at 
the  highest  rates  attainable  for  such  deposits.  Said  moneys 
and  any  part  thereof,  aside  from  current  operating  expenses, 
shall  not  be  checked  against  nor  paid  out  by  the  receivers 
except  under  orders  of  the  court,  on  checks  countersigned  by 
the  judge  of  this  court. 

Done  in  open  court . 

Smith  McPherson,  Judge. 

No.  790. 

Order  Allowing  Claims  Approved  by  Receiver. 

[Captio7t.] 

This  cause  coming  on  to  be  heard  upon  the  petition  of 
Guy  W.  Mallon,  receiver  herein,  for  an  order  of  allowance 


1184  SUITS   IN    EQUITY. 

of  the  claims  of  the  creditors  of  the  Superior  Portland  Ce- 
mient  Company,  other  than  those  that  were  allowed  on  No- 
vember 7,  1914,  which  claims  have  been  duly  presented  and 
verified  to  the  satisfaction  of  said  receiver,  upon  considera- 
tion thereof  the  court  finds  that  the  persons  whose  names  are 
hereinafter  set  forth  are  creditors  of  the  Superior  Portland 
Cement  Company  in  the  amounts  set  opposite  their  respective 
names,  and  upon  the  recommendation  of  the  receiver  said 
claims  are  hereby  found  to  be  valid  and  correct  in  amount 
and  the  same  are  duly  allowed,  without  prejudice  to  any 
claim  for  priority  by  any  of  said  parties. 


No.  797. 

Order  Making  Allowances  in  Receivership. 

[Caption.l 

The  court  makes  the  following  allowances,  namely: 

George  F.  Sharitt  has  heretofore  been  paid  by  orders  of 
this  court  $5,000,  and  he  is  allowed  the  further  sum  of 
$10,500. 

C.  F.  Holmes  has  heretofore  been  paid  the  sum  of  $5,000 
on  account  as  receiver,  and  is  now  allowed  the  additional 
sum  of  $10,500. 

Eugene  Mackey,  a  receiver,  has  heretofore  been  allowed 
the  sum  of  $5,000,  and  is  hereby  allowed  the  additional  sum 
of  $5,000. 

John  F.  Phillips  has  heretofore  been  allowed  the  sum  of 
$1,000,  and  he  is  now  allowed  the  additional  sum  of  $5,000 
as  his  compensation  as  solicitor  for  the  receivers. 

-John  J.  Jones,  as  solicitor  for  receivers,  has  heretofore 
been  allowed  the  sum  of  $6,500,  and  he  is  hereby  allowed  the 
additional  sum  of  $9,000. 

F.  J.  Fritch  is  allowed  the  sum  of  $1,000  for  legal  services 
rendered  to  the  receivers. 

A.  B.  Macbeth  is  allowed  on  account  of  salary  $400. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1185 

Charles  Blood  Smith,  solicitor  for  complainants,  has  here- 
tofore been  allowed  the  sum  of  $4,500,  and  he  is  now  allowed 
the  additional  sum  of  $5,000. 

Each  and  every  of  the  foregoing  allowances  is  made  in 
open  court,  all  parties  in  interest  herein,  including  the  state 
court  receivers  and  their  solicitors,  being  present,  and  all 
acquiescing  in  the  said  allowances  in  said  amounts.  And  all 
of  said  allowances  are  made  in  full  of  all  claims  up  to  and 
including  this  day.  The  court  finds  that  the  management  of 
the  receivers  of  this  court  has  been  such  as  to  enable  them 
to  pay  all  said  sums  aforesaid  out  of  the  reduction  of  salaries 
and  the  discharging  of  unnecessary  employes  and  interest  on 
moneys  in  their  possession  at  current  rates  of  two  per  cent, 
per  annum. 

The  receivers  of  this  court  will  this  day  by  check  pay  to 
said  state  court  receivers,  Landon  and  Litchfield,  the  sum  of 
fifty  thousand  dollars  ($50,000)  on  account,  the  same  being 
necessary  for  operating  expenses,  which  in  open  court  is 
done. 

The  court  reserves  the  right  to  make  any  and  all  other, 
further  and  different  orders  herein  as  it  may  deem  equitable 
and  just  in  the  premises.  For  all  of  which  and  all  other 
proper  purposes  this  cause  is  continued. 

Done  in  open  court  at  Kansas  City,  Kansas,  this  January 
24,  1914.  Smith  McPherson,  Judge. 


No.  798. 

Entry  of  Order  Appointing  Receiver  for  Manufacturing  Com- 
pany, Directing  Transfer  of  Property  to  Him,  Designating 
His  Counsel,  etc. 

[Caption.] 

This  day  this  cause  came  on  to  be  heard  upon  the  amended 
bill  of  complaint  of  the  plaintiff,  upon  the  motion  for  the  ap- 
pointment of  a  receiver  and  the  affidavits  in  support  thereof, 
the  objections  to  the  appointment  of  a  receiver  filed  on  behalf 


1186  SUITS   IN    EQUITY. 

of  the  defendant  and  the  affidavits  in  support  of  said  objec- 
tions, and  the  arguments  of  counsel,  and  it  was  argued  by 
counsel,  and  submitted  io  the  court. 

Upon  consideration  whereof,  the-  court,  being  fully  advised 
in  the  premises,  finds  that  the  motion  for  the  appointment  of 
a  receiver  herein  is  well  taken  and  should  be  sustained.  It  is 
therefore  ordered,  adjudged  and  decreed  that  A.  B.  be  and 
he  is  hereby  appointed  receiver  of  the  defendant.  The  Capital 
City  Dairy  Company,  and  of  all  its  property,  equitable  inter- 
ests, things  in  action,  rights  to  property,  effects  and  money, 
and  all  other  property  of  whatever-  kind  and  description  and 
wheresoever  situated,  belonging  to  the  defendant,  The  Capi- 
tal City  Dairy  Company,  with  full  power  and  authority  to 
collect  and  reduce  to  possession  by  appropriate  legal  proceed- 
ings, or  otherwise,  all  of  said  property,  equitable  interests, 
things  in  action,  rights  to  property,  effects  and  money  belong- 
ing to  said  The  Capital  City  Dairy  Company. 

The  defendant.  The  Capital  City  Dairy  Company,  its  offi- 
cers, directors,  stockholders,  employes  and  agents,  and-  all 
other  persons  having  any  property  or  effects  of  said  corpora- 
tion in  their  possession  or  control,  are  hereby  ordered  and 
directed  to  turn  over  to  the  said  A.  B.,  as  such  receiver  here- 
in, all  property,  equitable  interests,  things  in  action,  rights  to 
property,  effects,  money,  and  all  books,  papers,  documents  or 
other  evidences  of  indebtedness  belonging  to  said  corpora- 
tion, in  their  possession  or  under  their  control. 

It  is  further  ordered  that  before  entering  upon  his  duties 
as  receiver,  the  said  A.  B.,  as  said  receiver,  give  bond,  with 
sureties,  to  the  satisfaction  of  the  clerk  of  this  court,  in  the 
sum  of  five  thousand  dollars  ($5,000). 

And  thereupon  the  said  A.  B.  appeared  in  open  court  and 
was  duly  sworn  and  qualified  as  such  receiver,  and  executed  a 
bond  with  sureties  as  herein  required,  as  appears  from  the 
records  of  this  court. 

To  said  findings  of  the  court  and  each  thereof,  and  to  said 
order,  judgment  and  decree  of  the  court,  the  defendant,  The 
Capital  City  Dairy  Company,  excepts. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1187 

Thereupon  the  defendant  gave  notice  of  its  intention  to 
appeal  from  said  findings  and  from  said  order,  judgment  and 
decree. 

Whereupon  the  court  fixes  the  appeal  bond  at  the  sum  of 
five  hundred  dollars. 

On  account  of  the  knowledge  possessed  by  X.  Y.  and.  S.  T. 
of  the  matters  affecting  the  defendant,  its  officers  and  stock- 
holders, they  are-  hereby  designated  by  the  court  as  counsel 
for  the  receiver. 


No.  799. 

Judge's  Fiat  Appointing  Receiver  for  Street  Railway. 

[Caption.] 

The  foregoing  and  annexed  bill  having  been  presented  to 
me,  and  having  been  duly  considered,  and  it  appearing  that 
the  appointment  of  a  receiver  is  necessary  to  properly  care 
for  and  preserve  the  property  pending  the  litigation,  and  that 
the,  defendant  acquiesces  in  the  prayer  for  a  receiver,  it  is 

Ordered  that  Guy  W.  Faller  be  and  he  is  hereby  appointed 
receiver-  of.  Amarillo*  Street  Railway  Company,  with  author- 
ity to  bring  and  defend  any  and  all  such  suits  as  may  be 
necessary  from  time  to  time  in  order  to  accomplish  the  pur- 
poses of  said  appointment,  and  to  do  and  perform  all  such 
acts  as  are  usually  incident  and  proper  to  be  done  as  receiver, 
all  of  which  acts  and  proceedings,  however,  to  be  subject  to 
and  under  the  control  of  the  court. 

This  appointnient  to  take  effect  and  be  in  force  only  upon  the 
filing  of  the  bill  in  the  district  court  of  the  United  States  for 
the  northern  district  of  Texas,  at  Amarillo,  Texas,  and  upon 
the  execution  of  a  good  and  sufficient  bond,  to  be  approved  by 
the  clerk  of  said  court  or  his  deputy,  in  the  sum  of  five  thou- 
sand dollars,  payable  and  conditioned  as  required  by  law  and 
in  conformity  with  the  practice  in  equity  and  the  laws  of  the 
state  of  Texas.  Edward  R.  Meek, 

U.  S.  District  Judge. 


1188  SUITS   IN    EQUITY. 

No.  800. 

Order  Appointing  Receiver  of  Indian  Oil  Lands,  Defining  His 
Powers  and  Duties  and  for  Other  Purposes. 

[Caption.] 

On  this  the  17th  day  of  April,  1914.  this  cause- came  on  to 
be  heard  in  open  court  at  Muskogee,  Oklahoma,  on  the  peti- 
tion of  the  complainant,  the  United  States  of  America,  repre- 
sented by  C.  C.  Herndon,  assistant  United  States  attorney, 
and  the  defendant,  Bessie  Wildcat,  a  minor ;  Santa  Watson,  as 
guardian  of  Bessie  Wildcat,  a  minor ;  Cinda  Lowe,  I  ouisa 
Fife,  Annie  Wildcat  and  Emma  West,  represented  by  Ramsey 
&  Thomas,  their  solicitors  of  record,  and  the  defendants,  Mar- 
tha Jackson,  a  minor;  Saber  Jackson,  as  guardian  and  next 
friend  of  Martha  Jackson,  a  minor;  J.  Coody  Johnson  and 
Black  Panther  Oil  &  Gas  Company,  a  corporation,  represented 
by  J.  G.  Harley,  their  solicitor  of  record,  and  the  defendant, 
H.  B.  Beeler,  represented  by  Rosser  &  Cochran,  his  solicitors 
of  record,  for  the  appointment  of  a  receiver  in  this  cause,  and 
for  an  order  of  court  defining  the  powers  and  duties  of  the 
receiver.  The  defendants,  Mattie  Bruer  (nee  Phillips),  Jennie 
Phillips,  Billie  Phillips,  William  McCombs,  Jack  Gouge,  Ern- 
est Gouge  and  D.  L.  Berryhill,  by  their  solicitors,  R.  F.  Turner 
and  W.  V.  Thraves,  being  present  and  consenting  to  such  ap- 
pointment of  receiver,  and  to  such  defining  of  his  powers  and 
duties,  and  it  appearing  to  the  court  that  the  grounds  for  the 
appointment  of  a  receiver,  as  set  forth  in  the  said  petition,  are 
sufficient,  and  that  the  receiver  should  be  appointed  in  this 
cause,  to  take  into  his  charge  and  custody,  as  receiver,  the  land 
which  forms  the  principal  subject-matter  of  this  action,  to-wit : 

The  northwest  quarter  of  section  9,  township  18  north, 
range  7  east,  in  Creek  county,  Oklahoma, 

and  to  direct  and  cause  the  production  of  oil  and  gas  from  the 
said  land  during  the  pendency  of  this  suit.  It  is  hereby  or- 
dered, adjudged  and  decreed  that  J.  F.  Darby,  of  Muskogee, 
Oklahoma,  be  and  he  is  hereby  appointed  receiver  in  the  above 


RECEIVERS ORIGINAL   PROCEEDINGS,  1189 

styled  cause,  and  upon  the  execution  by  the  said  J.  F.  Darby 
of  a  good  and  sufficient  bond  in  the  sum  of  $10,000,  with  sol- 
vent security,  to  be  approved  by  the  judge  of  this  court,  to  be 
so  conditioned  as  to  require  the  said  J.  F.  Darby  as  such  re- 
ceiver to  comply  punctually  with  each  and  all  of  the  orders  of 
the  court  herein,  and  to  account  faithfully,  accurately  and 
punctually  for  all  moneys  that,  may  come  into  his  hands  as  such 
receiver,  and  to  disburse  the  same  only  as  directed  by  the  court, 
and  upon  his  taking  and  subscribing  an  oath  to  be  filed  in  court 
in  this  cause  to  perform  faithfully,  diligently  and  impartially 
his  duties  as  receiver,  and  to  keep  safely  and  disburse  only  as 
directed  by  the  court,  the  funds  that  may  come  into  his  cus- 
tody or  under  his  control ;  then  he,  the  said  J.  F.  Darby,  shall 
be  and  is  hereby  authorized  and  directed  to  take  into  his  official 
charge  and  custody  the  above  described  tract  of  land  and  all 
improvements  now  thereon  and  to  receive  and  hold  subject  to 
the  order  of  the  court  all  funds  that  may  be  paid  to  or  collected 
by  him  as  such  receiver  under  the  provisions  of  this  order. 

The  said  J.  F.  Darby  as  receiver  is  hereby  authorized  and 
directed  to  enter  into  a  formal  agreement  with  the  said  Black 
Panther  Oil  &  Gas  Company,  a  corporation,  for  the  develop- 
ment of  the  said  land  and  the  production  of  oil  and  gas  there- 
from by  the  said  Black  Panther  Oil  &  Gas  Company  during 
the  pendency  of  this  action,  the  said  agreement  to  embody 
substantially  the  following  provisions,  to-wit : 

That  the  production  of  oil  and  gas  from  said  land  be  pro- 
ceeded with  by  the  said  Black  Panther  Oil  &  Gas  Company, 
and  that  25  per  cent,  of  the  gross  amount  of  all  oil  and  gas 
produced  by  the  said  company  from  the  said  land  or  the  pro- 
ceeds of  25  per  cent,  of  the  gross  amount  of  oil  and  gas  so  pro- 
duced therefrom  shall  be  delivered  or  paid  by  the  said  company 
to  the  said  J.  F.  Darby  as  receiver,  or  to  such  person  or  cor- 
poration as  he  may  direct ;  that  the  said  Black  Panther  Oil  & 
Gas  Company  drill  in  good  faith  at  least  three  wells  on  the 
said  land  for  the  purpose  of  offsetting,  and  to  a  sufficient 
depth  and  at  proper  places  to  offset  the  wells  on  adjacent  lands, 


1190  SUITS   IN    EQUITY. 

one  of  said  minimum  number  of  three  wells  to  be  commenced 
within  ninety  days  from  the  date  of  the  agreement  entered 
into  between  the  said  Black  Panther  Oil  &  Gas  Company  and 
the  said  receiver;  another  well  to  be  commenced  within  six 
months  from  said  date,  and  the  third  well  to  be  commenced 
within  nine  months  from  said  date,  each  of  said  wells  to  be 
completed  within  a  reasonable  time  after  its  commencement, 
and  the  wells  to  be  drilled  on  the  said  land  by  the  said  oil  and 
gas  company  to  be  drilled  in  such  number  and  to  such  depth 
and  at  such  places  as  may  be  necessary  and  sufficient  to  protect 
the  above  described  tract  of  land  from  being  drained  by  wells 
on  adjoining  lands,  and  as  may  properly  develop  the  above 
described  land  to  the  fullest  reasonable  extent ;  that  the  said 
Black  Panther  Oil  &  Gas  Company  do  all  things  necessary  for 
the  full  protection  of  the  above  described  tract  of  land  against 
drainage  caused  by  the  operation  of  oil  or  gas  wells  on  adja- 
cent lands ;  that  the  said  Black  Panther  Oil  &  Gas  Company 
promptly  execute  to  the  said  J.  F.  Darby  as  receiver,  or  to  his 
successor  or  successors  in  the  receivership,  for  the  use  and 
benefit  of  the  parties  in  interest  in  this  action,  a  good  and  suf- 
ficient bond  in  the  sum  of  $25,000,  to  be  approved  by  the  said 
J.  F.  Darby  as  receiver,  conditioned  that  the  said  Black  Pan- 
ther Oil  &  Gas  Company  faithfully  carry  out  and  perform  all 
and  singular  the  provisions  of  its  said  agreement  with  the  re- 
ceiver; that  the  said  Black  Panther  Oil  &  Gas  Company  shall 
not  claim  or  be  allowed  any  sum  for  the  expense  of  any  dry 
hole  or  holes  drilled  by  it  on  said  land,  and  shall  not  claim  or 
be  allowed  any  sum  for  any  expenses  of  any  kind  incurred  by 
it  in  carrying  out  its  said  agreement  with  the  said  receiver,  or 
in  producing  or  attempting  to  produce  oil  and  gas  from  the 
said  land  except  its  working  interest  of  75  per  cent,  of  the  oil 
and  gas  produced  therefrom. 

The  said  J.  F.  Darby  as  receiver  is  authorized  and  directed 
to  require  and  take  from  said  Black  Panther  Oil  &  Gas  Com- 
pany, to  run  to  himself  and  his  successor  or  successors  in  the 
receivership,  for  the  use  and  benefit  of  the  parties  in  interest 


RECEIVERS ORIGINAL   PROCEEDINGS.  1191 

in  this  action,  a  good  and  sufficient  bond  in  the  sum  of  $25,000, 
to  be  approved  by  himself,  conditioned  that  the  said  Black 
Panther  Oil  &  Gas  Company  faithfully  carry  out  and  perform 
all  and  singular  the  provisions  of  its  agreement  with  him. 

The  said  J.  F.  Darby  as  receiver  is  authorized  and  directed 
to  receive  and  collect,  and  is  hereby  charged  with  the  duty  of 
receiving  and  collecting  from  the  said  Black  Panther  Oil  & 
Gas  Company  a  full  25  per  cent,  of  the  gross  amount  of  all 
the  oil  and  gas  produced  by  the  said  company,  or  any  person 
acting  for  it,  from  the  said  land,  and  he  is  further  authorized 
and  directed  to  make  such  examination  of  the  books  and  rec- 
ords of  the  said  Black  Panther  Oil  &  Gas  Company  as  he  may 
deem  necessary  to  enable  him  to  perform  properly  his  duty  as 
such  receiver,  and  he  is  further  authorized  and  directed  to  re- 
port promptly  any  failure  on  the  part  of  the  said  Black  Pan- 
ther Oil  &  Gas  Company  to  deliver  to  him  or  under  his  order 
a  full  25  per  cent,  of  the  gross  amount  of  all  the  oil  and  gas 
produced  from  the  said  land,  or  the  proceeds  thereof,  and  any 
other  failure  of  the  said  company  to  perform  its  undertakings 
to  and  agreements  with  him,  and  he  is  further  authorized  and 
directed  to  release  to  the  said  Black  Panther  Oil  &  Gas  Com- 
pany and  its  assigns,  free  from  any  claim  of  any  party  to  this 
action,  if  and  so  long  as  the  provisions  of  the  agreement  to  be 
entered  into  between  himself  and  the  said  Black  Panther  Oil 
&  Gas  Company  are  faithfully  and  punctually  performed  by 
the  said  company,  the  working  interest  in  the  oil  and  gas  pro- 
duced by  the  said  company  from  the  above  described  land; 
that  is  to  say,  all  the  oil  and  gas  so  produced  in  excess  of  the 
royalty  portion  of  one-fourth  of  the  gross  amount  of  produc- 
tion. 

The  said  J.  F.  Darby  as  receiver  is  further  directed  to  hold 
and  safely  keep  the  fund  accruing  from  the  said  royalty  por- 
tion of  25  per  cent,  of  the  oil  and  gas  produced  from  the  said 
land,  subject  to  be  disbursed  by  him  only  under  an  order  of 
this  court  regularly  made. 

The  said  J.  F.  Darby  as  receiver  is  further  ordered  and 
directed  to  keep  an  accurate  account  of  the  production  of  oil 


1192  SUITS    IN    EQUITY. 

and  gas  from  the  said  land,  and  of  all  his  doings  under  this 
order  of  appointment,  and  of  the  funds  that  come  into  his 
custody,  and  of  his  disposition  of  the  said  funds,  and  shall  file 
with  the  clerk  of  this  court  in  this  cause  at  least  once  in  each 
successive  period  of  sixty  days  a  true  and  complete  statement, 
under  oath,  of  his  accounts  and  doings  under  this  order,  and 
he  shall  receive  as  his  compensation  for  all  his  services  here- 
under such  sums  as  the  court  may  from  time  to  time  allow 
therefor,  and  in  addition  thereto  shall  be  allowed  his  actual 
and  necessary  expenses  incurred  in  discharging  his  duty  as 
receiver  in  this  cause,  including  an  allowance  to  cover  the 
actual  and  necessary  premium  on  his  bond  or  bonds,  and  shall 
incorporate  a  statement  of  such  expenses  in  the  verified  state- 
ments which  he  is  hereby  required  to  file  with  the  clerk  of  this 
court,  and  he  shall  not  reimburse  himself  for  any  expenses 
until  such  statement  has  first  been  approved  by  the  judge  of 
this  court. 

The  said  J.  F.  Darby  as  receiver  is  hereby  ordered  and  em- 
powered to  take  full  custody  and  control  of  the  above  de- 
scribed tract  of  land,  subject  only  to  the  |)ossession  thereof 
by  the  said  Black  Panther  Oil  &  Ga'^  Company  for  the  pro- 
duction of  oil  and  gas  therefrorri  under  this  order,  and  its 
agreement  with  the  said  receiver,  and  he,  the  said  receiver,  is 
further  empowered  and  ?'3thorized  to  go  upon  said  tract  of 
land  at  any  time  and  make  such  inspections  and  investigations 
as  will,  in  his  judgment,  enable  him  to  perform  properly  his 
duties,  power  and  authority  under  this  order  of  appointment. 

It  is  further  ordered  by  the  court  that  at  the  final  termina- 
tion of  this  action  the  said  Black  Panther  Oil  &  Gas  Company 
shall  be  allowed  the  reasonable  cash  value  of  its  interest  in  the 
corporeal  properties,  such  as  derricks,  machinery,  piping,  cas- 
ing, tanks,  etc.,  owned  by  it  and  then  on  the  premises,  and 
necessary  in  the  development  of  and  production  of  oil  and  gas 
from  the  same,  but  the  amount  so  to  be  allowed  to  the  said 
Black  Panther  Oil  &  Gas  Company  shall  in  no  event  exceed 
the  amount  of  royalty  that  has  accrued  in  the  hands  of  the 
said  receiver  for  the  benefit  of  the  prevailing  party  or  parties 


RECEIVERS ORIGINAL    PROCEEDINGS.  1193 

to  this  suit ;  that  the  reasonable  cash  vahie  of  the  said  cor- 
poreal properties  be  determined  according  to  their  condition 
at  the  time  of  the  termination  of  this  action  and  be  ascertained 
in  the  following  manner : 

One  person  shall  be  appointed  by  the  Black  Panther  Oil  & 
Gas  Company  and  one  by  the  prevailing  party  or  parties  to 
this  action,  and  the  said  two  persons  shall  meet  to  consider 
and  appraise  the  reasonable  cash  value  of  the  said  physical 
properties,  and  whatever  sum  may  be  agreed  upon  by  them 
shall  be  reported  by  them  in  writing  to  this  court  and  shall 
be  taken  as  such  reasonable  cash  value,  but  if  they  be  unable 
to  agree  thereupon,  the  Black  Panther  Oil  &  Gas  Company 
and  the  said  prevailing  party  or  parties  shall  report  such  dis- 
agreement to  this  court,  and  this  court  will  thereupon  appoint 
some  fit  and  disinterested  person  as  a  third  appraiser,  and  the 
three  said  appraisers  shall  then  meet  and  consider  such  reason- 
able cash  value,  and  the  concurring  opinion  of  any  two  of 
the  three  of  them,  when  reported  in  writing  to  this  court, 
shall  control  and  be  conclusive  as  to  such  value  between  the 
said  Black  Panther  Oil  &  Gas  Company  and  the  said  prevail- 
ing party  or  parties,  but  any  such  determination  of  value 
shall  always  and  in  any  event  be  subject  t(5  approval  by  this 
court.  This  order  is  made  subject  to  such  notifications  in  any 
part  hereof  as  the  court  may  at  any  time  hereafter  upon  due 
notice  to  counsel  and  a  hearing  deem  necessary  and  proper 
for  the  better  conduct  of  the  matters  involved. 

R.  E.  C, 
Judge  of  the  United  States  District  Court. 


No.  801. 

Order  Amending  Order  Appointing  Receiver,  Continuing 

Him,  Prescribing  Duties,  etc. 
[Caption.] 

The  order  of  this   Court   made   in  chambers   on   the   21st 
day  of  August,    1916.  appointing  Guy  W.   Faller,   Receiver, 


1194  SUITS   IN    EQUITY. 

of  Amarillo  Street  Railway  Company,  in  the  above  entitled 
cause,  is  hereby  in  all  things  ratified  and  confirmed,  and 
on  this  the  2nd  day  of  October,  1916,  all  parties  to  this 
cause  being  present  by  their  attorneys,  and  the  Court  hav- 
ing considered  said  appointment,  it  is  ordered  that  said 
original  order  of  appointment  be  and  the  same  is  hereby 
amended,  so  that  the  order  of  this  Court  now  entered  is  as 
follows : 

Guy  W.  Faller  is  hereby  continued  as  Receiver  of  said 
Amarillo  Street  Railway  Company  until  the  further  orders 
of  this  Court,  and  it  appearing  to  the  Court  from  the  re- 
port of  said  Receiver  now  on  file  that  he  has  possession  of 
all  of  the  property  of  said  Amarillo  Street  Railway  Com- 
pany; it  is  ordered  by  the  Court  that  said  Receiver  con- 
tinue in  possession  of  said  property,  including  all  the  as- 
sets, rights  and  franchises  of  said  Amarillo  Street  Railway 
Company,  wherever  situated,  including  all  the  railway 
tracks,  terminal  facilities,  real  estate,  offices,  stations  and 
all  other  buildings  and  property  of  every  kind  owned,  held, 
possessed  or  controlled  by  said  Company,  together  with  all 
other  property  in  connection  therewith  and  all  moneys, 
choses  in  action,  credits,  bonds,  stocks,  lease-hold  interests, 
operating  contracts  and  other  assets  of  every  kind  and  all 
other  property,  real,  personal  and  mixed,  held  or  possessed, 
by  said  Company,  or  now  held  or  possessed  by  said  Re- 
ceiver for  it,  to  have  and  to  hold  the  same  as  the  officer 
of  and  under  the  orders  and  directions  of  this  Court. 

Said  Receiver  is  hereby  authorized  and  directed  and  said 
Amarillo  Street  Railway  Company  and  each  and  every  of 
its  officers,  directors,  agents  and  employees  are  hereby  re- 
quired and  commanded  to  obey  and  conform  to  such  or- 
ders as  may  be  given  them  from  time  to  time  by  the  said 
Receiver,  or  his  duly  constituted  representative,  in  conduct- 
ing the  said  railway  and  business  and  in  discharging  his 
duty  as  such  receiver,  and  they  and  each  of  them  are 
hereby  enjoined  from  interfering  in  any  way  whatever  with 


RECEIVERS ORIGINAL   PROCEEDINGS.  1195 

the  possession  or  management  of  any  part  of  the  business 
or  property  over  which  said  receiver  is  so  appointed,  or 
from  in  any  way  preventing  or  seeking  to  prevent  the  dis- 
charge of  his  duties  as  such  Receiver. 

Said  Receiver  is  authorized  to  pay  out  of  any  income 
or  revenues  which  may  come  into  his  hands  all  just  claims 
and  accounts  for  labor  and  operating  expenses  of  said  street 
Railway,  professional  services,  salaries  of  officers  and  em- 
ployees, as  the  same  mature  from  time  to  time,  but  he  shall 
make  no  purchase  of  ties,  rails,  cars,  buildings  or  equip- 
ment, or  of  other  material  for, the  construction,  improve- 
ment or  betterment  of  the  property  of  said  Street  Railway 
Company,  except  upon  an  order  of  this  Court  first  obtained 
therefor. 

Said  Receiver  is  further  ordered  and  directed  to  pay  all 
taxes  on  the  said  mortgaged  property  as  the  same  shall 
mature,  and  also  all  the  current  expenses  in  the  operation 
and  maintenance  of  said  road,  and  to  collect  all  the  revenue 
thereof. 

Said  Receiver  is  further  ordered  and  directed  to  keep  or 
cause  to  be  kept  such  accounts  as  may  be  necessary  to  show 
the  sources  from  which  all  the  income  and  revenues  shall 
be  derived,  with  reference  to  the  interest  of  all  the  parties 
to  each  of  the  mortgages  mentioned  in  the  complainant's 
bill. 

The  Receiver  shall  report  to  this  Court  from  time  to  time, 
as  may  be  demanded  by  the  Court,  showing  in  detail*  his 
actions  under  this  order,  and  he  may  apply  to  this  Court 
for  instructions  whenever  necessary. 

Said  Receiver  is  authorized  to  defend  any  actions  pend- 
ing or  which  may  be  brought,  seeking  to  establish  claims  or 
liens  against  the  said  Company,  or  its  property,  and  to 
prosecute  or  continue  any  action  already  brought  against 
any  corporation  or  party  for  the  recovery  of  any  money 
or  property  due  to  the  said  Amarillo  Street  Railway  Com- 
pany. 


1196  SUITS   IN    EQUITY. 

The  bond  of  said  Guy  \V.  Faller  as  Receiver,  heretofore 
presented  by  him  and  approved  by  the  Clerk  of  this  Court, 
and  filed  herein,  is  hereby  in  all  things  approved  by  the 
Court,  and  shall  continue  in  full  force  and  effect  as  the 
bond  of  said  Receiver  according  to  its  terms  and  the  order 
of  the   Court   heretofore  made   in  appointing  said   Receiver. 

E.   R.   M., 
U.   S.   Judge. 


No.  802. 

Petition  of  Receiver  to  Bring  in  Parties,  etc. 

[Caption.] 

Your  petitioner,  A.  B.,  respectfully  represents  and  shows 
to  the  court  that  he  was  heretofore  appointed  receiver  by 
this  court  in  the  above  entitled  case,  the  general  nature  of 
which  suit  and  the  controversies  herein,  will  appear  from 
the  bill  and  petition  presented  to  this  court  with  this  appli- 
cation, which  said  bill  and  the  record  of  this  court  in  this 
case  as  made  to  this  date,  is  referred  to  without  going  fur- 
ther into  detail,  which  is  not  deemed  necessary  for  the  pur- 
pose  of    this   petition. 

Your  petitioner  further  is  advised  and  informed  that  in 
order  to  save  cost  and  expense  of  many  suits  and  to  better 
preserve  the  assets  of  the  defendant  corporation  and  to 
more  adequately  and  effectually  administer  the  trust  and 
recover  the  property  necessary  for  the  satisfaction  of  the 
debts  and  obligations  of  the  defendant  corporation,  and  be- 
cause actions  at  law  will  not  provide  an  adequate  remedy 
for  the  property  sought  to  be  recovered  in  the  above  en- 
titled case  and  its  application  to  the  payment  of  the  debts  of 
said  corporation,  and  in  order  to  save  the  cost  and  expense 
of  many  suits,  it  is  proper  if  it  may  be  done,  to  bring  in 
all  the  parties  holding  or  claiming  to  hold  any  of  the 
property  described  in  the  petition  and  all  the  parties  in- 
debted in  any  way  to  said  defendant  corporation,  and  com- 


RECEIVERS ORIGINAL    PROCEEDINGS.  1197 

pletely  adjust  the  rights  in  equity  of  all  parties  interested 
in  said  property  by  bill  or  petition  in  the  above  cause  in 
one  suit. 

Wherefore,  your  petitioner  prays  for  all  and  such  orders 
and  directions  as  will  enable  him  to  fully  discharge  his  duty 
in  the  matter  set  forth  in  the  bill  and  petition  presented 
herewith  as  well  as  for  such  general  instructions,  if  any,  as 
this  Honorable   Court  may  see  proper  to  give. 

A.    B., 
Petitioner. 
X.  Y.  and  S.  R, 
Solicitors    and    Counsellors    for    Receiver. 


No.  803. 

Order  Permitting  Receiver  to  Sue. 

[Caption.] 

This  day  this  cause  came  on  to  be  heard  upon  the  appli- 
cation and  the  petition  of  X.  R.,  receiver  herein,  and  the 
said  receiver  in  this  cause  is  ordered  and  directed  to  insti- 
tute suit  by  proper  bill  or  petition  in  the  pending  suit 
against  all  persons  indebted  to  the  defendant  company  or 
who  may  have  a^y  property  of  defendant  company  in  their 
custody  or  control,  and  for  all  proper  relief  touching  the 
matters  and  things  set  forth  in  the  bill  and  petition  of  the 
receiver  presented  herewith ;  and  upon  application  of  said 
receiver  he  is  hereby  granted  leave  to  file  said  bill  in  this 
cause. 


No.  804. 

Petition  of  Receivers  for  Authority  to  Accept  Part  Payment 
on  Note  and  to  Extend  Payment  on  Balance,  and  Order 
of  Court  Thereon. 

[Caption.] 

Come  now  Conway  F.  Holmes.  Geo.  F.   Sharitt  and  Eu- 
gene   Mackey,    Receivers    appointed    by    this    court    in    the 


1198      '  SUITS   IN    EQaiTY. 

above  entitled  cause  and  show  that  on  or  about  the  5th  day 
of  November,  1909,  the  Citizens  Gas  Company,  of  Nowata, 
Oklahoma,  for  good  and  vakiable  consideration  made,  exe- 
cuted and  dehvered  its  certain  promissory  note  for  the  sum 
of  Forty  Thousand  Dollars  ($40,000.00),  due  and  payable 
within  four  years  from  the  date  thereof,  and  payable  to  the 
order  of  G.  R.  Hemminger.  That  thereafter  for  good  and 
valuable  consideration  the  said  G.  R.  Hemminger  duly  sold, 
assigned  and  transferred  said  note  to  the  Kansas  Natural 
Gas  Company  and  that  said  company  is  now  the  legal  and 
equitable  owner  and  holder  thereof,  and  that  said  note  will 
mature  on  the  5th  day  of  November,  1913.  Said  Receivers 
further  represent  and  show  that  the  said  the  Citizens  Gas 
Company  is  not  capable  of  meeting  this  obligation,  but  is 
able  and  willing  to  pay  Nine  Thousand  Ninety-Eight  and 
53/100  Dollars  ($9,098.53)  and  to  enter  into  an  extended 
agreement,  as  shown  below,  and  your  Receivers  unquali- 
fiedly recommend  that  said  payment  be  made  and  accepted 
and   that   said   extension   be   authorized   and   granted : 

Wherefore,  Your  Receivers  pray  that  they  be  authorized 
to  enter  into  an  extension  agreement  on  said  matter  in  the 
following   form,    to-wit: 

"An  Agreement  for  the  Extension  af  Time  of 
Payment   of    Mortgage    Debt. 

This   Agreement,    Made    this    day   of    November, 

A.  D.  1913,  by  and  between  Conway  F.  Holmes,  Geo.  F. 
Sharitt  and  Eugene  Mackey,  Receivers  of  the  Kansas  Nat- 
ural Gas  Company,  the  owner  and  holder  of  a  certain  prom- 
issory note  for  the  sum  of  Forty  Thousand  Dollars 
($40,000.00),  given  by  The  Citizens  Gas  Company,  of 
Nowata,  Oklahoma,  and  secured  by  a  certain  mortgage  deed 
upon  certain  property  therein  described,  situated,  lying  and 
being  in  the  County  of  Nowata,  State  of  Oklahoma,  which 
said  mortgage  is  dated  the  5th  day  of  November,  A.  D. 
1909,  and  filed  for  record  on  the  5th  day  of  November, 
A.  D.  1909,  in  the  office  of  the  Register  of  Deeds  of  Nowata 
County,    Oklahoma,    and    duly   recorded    in   Volume   C.    M. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1199 

Index  at  Page  116,  N.  4261,  of  the  records  of  said  office, 
party  of  the  First  part,  and  The  Citizens  Gas  Company,  of 
'Nowata,  Oklahoma,  the  mortgagor,  party  of  the  second 
part. 

Witnesseth :  That  the  said  parties  for  themselves,  their 
heirs,  successors  and  assigns,  hereby  mutually  agree  that  the 
time  for  the  payment  of  Thirty-Three  Thousand  Three 
Hundred  and  One  Dollars  and  Forty-Seven  cents  ($33,- 
301.47)  of  the  principal  of  said  note  and  mortgage  debt 
shall  be  and  the  same  is  hereby  extended  to  be  paid  as  fol- 
lows, to-wit: 

Eight  Hundred  Dollars  ($800.00)  on  or  before  the  15th 
day  of  February,  A.  D.  1914,  and  Eight  Hundred  Dollars 
($800.00)  on  or  before  the  15th  day  of  March,  A.  D.  1914; 
and  Five  Hundred  Dollars  ($500.00)  on  or  before  the  15th 
day  of  each  succeeding  April,  May,  June,  July,  August, 
and  September,  and  Eight  Hundred  Dollars  ($800.00)  on 
or  before  the  15th  day  of  each  succeeding -October,  Novem- 
ber, December,  January,  February,  and  March,  until  the 
whole  of  said  sum  of  Thirty-Three  Thousand  Three  Hun- 
dred and  One  Dollars  and  Forty-Seven  Cents  ($33,301.47) 
is  paid,  and  that  the  principal  sum  remaining  from  time 
to  time* unpaid  is  to  bear  interest  at  the  rate  of  7%,  payable 
annually  on  the  5th  day  of  November  each  year  until  said 
principal  and  interest  is  fully  paid,  and  until  the  same  is 
fully  paid,  it  will  punctually  pay  interest  now  due  or  to 
become  due  thereon  at  the  time  and  rate  aforesaid,  and 
the  failure  to  punctually  make  said  payments  or  any  part 
thereof  when  due,  shall  at  the  option  of  the  holder  hereof 
make  the  whole  of  said  principal  and  interest  due  and  pay- 
able. 

That  the  said  The  Citizens  Gas  Company  will  keep  the 
mortgaged  premises  in  good  repair,  and  the  taxes  thereon 
duly  paid,  according  to  the  provisions  of  said  mortgage. 
That  it  will  punctually  pay  all  taxes  and  assessments  levied 
or  assessed  on  the  mortgaged  premises  or  any  interest 
therein,  whether  in  the  nature  of  taxes  or  assessments  now 


1200  SUITS   IN    EQUITY. 

in  being  or  not,  and  that  at  the  expiration  of  said  extended 
term,  it  will  pay  said  mortgage  debt  and  all  interest  thereon, 
together  with  any  money  paid  by  the  holders  for  taxes  or 
other  necessary  charges  on  or  in  respect  to  the  mortgaged 
premises,  or  the  debt  secured  by  said  mortgage,  and  will  in 
all  respects  faithfully  comply  with  and  perform  all  the  cove- 
nants  and   terms   of   said  mortgage   deed. 

It  is  expressly  understood  and  agreed  that  nothing  herein 
contained  shall  be  construed  to  impair  the  security  of  said 
party  of  the  first  part,  their  successors  or  assigns,  under 
said  mortgage  or  other  contract,  or  effect  any  rights  or 
powers  which  it  may  have  under  said  note  and  mortgage  for 
the  recovery  of  said  mortgage  debt  with  interest  in  case  of 
non-fulfillment  of  this  agreement,  with  interest,  by  said 
party  of  the  second  part. 

Said  party  of  the  second  part  as  a  further  security  for 
said  debt  and  as  part  consideration  hereof,  hereby  sells, 
assigns  and  transfers  all  of  its  right,  title  and  interest  in 
and  to  a  certain  judgment  obtained  by  it  against  the  Brit- 
ish-American Cement  Company  in  the  circuit  court  of  Jack- 
son County,  Missouri.  Said  judgment,  when  collected,  to 
be  applied  by  the  holders  hereof  to  the  extinguishment  of 
the   payments   last   maturing   under   this    agreement. 

Executed  this    day  of  November,  A.   D.    1913. 


Receivers,  Kansas  Natural  Gas  Company. 
The  Citizen's  Gas  Company, 

By , 

Its    President. 

'Attest : 


Its  Secretary." 
And   for  all  proper  orders   in   the   premises. 


John  J.  Jones, 
Attorney    for   said    Receivers. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1201 

No.  805. 

Petition  to  Discharge  Receivers  Appointed  by  Federal  Court 
and  for  Delivery  of  all  Property  in  their  Hands  as  such 
Receivers  to  the  Receivers  Appointed  by  the  State  Court. 

[Caption.] 

Come  now  John  S.  Dawson,  Attorney  General  of  the 
State  of  Kansas,  and  John  M.  Landon  and  R.  S.  Litchfield, 
citizens  of  Independence,  Montgomery  County,  Kansas,  and 
appearing  for  the  purposes  of  this  appHcation  and  petition 
only,  and  not  in  subordination  to  or  recognition  of  the 
propriety  of  this  main  proceeding,  but  as  the  duly  authorized 
officers  and  representatives  of  the  District  Court  of  Mont- 
gomery County,  Kansas,  present  this  petition  and  show  to 
this  Honorable  Court  the  following  facts  and  matters,  to 
the  end  of  making  plain  the  propriety  of  this  request  and 
prayer  of  the  District  Court  of  Montgomery  County,  Kan- 
sas, here  and  now  presented  through  its  said  offices  to  yield 
to  said  last  named  court  the  physical  control  of  the  prop- 
erties over  which  said  last  named  court  alone  has  legal 
dominion,  but  which  is  now  in  the  possession  of  certain 
officers  of  this,  the  United  States  District  Court  for  the 
District  of  Kansas. 

(1).  On  January  5th,  1912,  the  State  of  Kansas  by  its 
Attorney  General  brought  an  action  in  the  nature  of  quo 
wr.rranto  in  the  District  Court  of  Montgomery  County, 
Kansas,  against  the  Independence  Gas  Company  and  the 
Consolidated  Gas,  Oil  and  Manufacturing  Company,  Kansas 
Corporations,  and  Kansas  Natural  Gas  Company,  a  Dela- 
ware corporation  authorized  to  do  business  in  Kansas,  charg- 
ing said  corporations  with  misuse,  perversion  and  abuse  of 
their  corporate  privileges,  and  with  having  contrived  and 
engaged  in  an  illegal  combination  in  restraint  of  trade  in 
violation  of  the  anti-trust  laws  of  the  State  of  Kansas  and 
in  violation  of  the  national  anti-trust  laws,  which  are  a  part 
of  the  civil  jurisprudence  of  the  State  of  Kansas,  by  which 


202  SUITS   IN    EQUITY. 

unlawful  combination  the  said  Kansas  Natural  Gas  Company 
had  secured  a  monopoly  of  the  sources  of  gas  supply  and  a 
monopoly  of  the  sale  and  distribution  of  gas  to  the  people 
of  Kansas,  and  by  which  unlawful  combination  the  selling 
price  of  gas,  a  product  of  domestic  raw  material,  an  article 
of  commerce,  and  an  aid  to  commerce,  had  been  advanced 
and  controlled  by  the  said  Kansas  Natural  Gas  Company. 
A  true  copy  of  the  petition  of  the  State  of  Kansas  in  said 
action  is  contained  in  an  abstract  filed  herewith,  but  not 
physically  attached  hereto  on  account  of  its  size  and  bulk, 
but  which  is  marked  "Kansas  Petition  Exhibit  A",  and 
made  a  part  hereof. 

(2).  The  said  petition  prayed  for  such  relief  as  is  sanc- 
tioned by  the  laws  of  the  State  of  Kansas,  and  which  is 
in  part  as  follows:    [omitted]. 

(3).  Issues  were  joined  by  the  filing  of  demurrers  by 
the  defendants  on  February  12th,  1912,  and  February  19th, 
1912,  which  demurrers  were  overruled  by  the  court  on 
April  29th,  1912;  and  on  May  21st,  1912,  answers  in  the 
nature  of  general  denials  to  all  the  allegations  of  the  i>e- 
tition  of  the  State  of  Kansas  were  filed  by  each  of  the 
defendants. 

(4).  Said  demurrers  and  the  rulings  thereon  and  the  an- 
swers of  defendants  appear  in  the  abstract  entitled  "Kansas 
Petition  Exhibit  A",  filed  herewith. 

(5).  Evidence  was  taken  and  heard  by  the  court  in  the 
said  action  in  conformity  with  the  laws  of  the  State  of 
Kansas  and  a  trial  had  before  the  Montgomery  County, 
Kansas,  District  Court,  T.  J.  Flannelly,  District  Judge  pre- 
siding, on  September  30th,  1912,  and  October  1st,  1912. 
and  on  said  October  1st,  1912,  it  was  agreed  in  open  court 
between  counsel  for  the  State  of  Kansas  and  for  the  de- 
fendants and  with  the  approval  of  the  court,  that  owing  to 
the  importance  of  the  action  its  gravity  and  the  public  and 
property  interests  therein,  and  the  voluminous  record  there- 
of,  that   time   should   be   taken   to   abstract   the   record   and 


RECEIVERS ORIGINAL   PROCEEDINGS.  1203 

print  such  abstract  and  to  submit  printed  briefs  to  aid  the 
court  in  summarizing  the  facts  and  determining  the  law 
pertaining  thereto,  and  the  State  of  Kansas  by  its  attorney 
general  and  counsel,  set  about  with  due  diligence  the  prep- 
aration of  such  abstract  and  brief,  a  copy  of  which  abstract 
is  filed  herewith,   marked   "Kansas   Petition   Exhibit  A." 

(6).  Some  time  thereafter  plaintiff's  abstract  and  brief 
were  duly  filed  and  the  brief  of  defendants  was  likewise 
filed,  and  on  February  3rd,  1913,  the  court  heard  the  argu- 
ments of  counsel  for  plaintiff  and  defendants,  and  on  Feb- 
ruary 15th,  1913.  the  District  Court  of  Montgomery  Coun- 
ty, Kansas,  delivered  its  opinion  and  rendered  judgment 
in  said  action,  made  findings  of  fact,  conclusions  of  law, 
and  issued  certain  restraining  orders,  injunctions  and  ren- 
dered its  decree,  all  of  which  are  filed  herewith,  marked 
"Kansas  Petition  Exhibit  B"  and  made  a  part  hereof,  but 
not  physically  attached  owing  to  its  size,  and  for  the  greater 
convenience  of  this  court. 

(7).  Said  opinion  and  judgment,  findings  of  fact,  con- 
clusions of  law,  restraining  order,  injunction  and  decree 
held  that  evidence  introduced  sustained  all  the  material  alle- 
gations of  the  plaintiff's  petition,  declared  the  Kansas  Nat- 
ural Gas  Company  an  illegal  combination  in  restraint  of 
trade,  and  that  each  and  all  of  the  defendants  had  perverted, 
misused  and  abused  their  corporate  privileges,  had  violated 
the  Kansas  anti-trust  laws  and  the  federal  anti-trust  laws, 
which  federal  anti-trust  laws  are  a  part  of  the  civil  juris- 
prudence of  the  State  of  Kansas;  and  the  said  court  ap- 
pointed two  of  these  petitioners,  John  M.  Landon  and  R.  S. 
Litchfield,  as  receivers  for  the  Kansas  Natural  Gas  Com- 
pany, fixing  their  bonds  in  the  sum  of  Fifty  Thousand  Dol- 
lars each,  and  on  the  same  date,  February  15,  1913,  said 
petitioners,  duly  qualified  as  such,  and  gave  said  bonds, 
which  bonds  were  duly  approved  by  the  court,  and  now 
appear  before  this  Honorable  Court  in  obedience  to  the 
order  of  the  District   Court  of  Montgomery   County,    Kan- 


1204  SUITS   IN   EQUITY. 

sas,  which  order  is  filed  herewith  as  part  hereof,  marked 
"Kansas  Petition  Exhibit  B,"  at  pages  36  to  42,  inclusive, 
and  at  page  50  thereof,  and  which  order  is  in  part  as  fol- 
lows: 

"The  relationship  of  these  companies  to  the  public  is 
such  that  a  complete  judgment  of  dissolution  and  ouster 
would  punish  the  public  rather  than  the  offending  compa- 
nies. A  dissolution  of  the  Consolidated  Gas,  Oil  and  Man- 
ufacturing Company  is  not  advisable,  nor  would  a  com- 
plete ouster  of  the  Kansas  Natural  Gas  Company  be  advis- 
able, so  that  the  court  will  take  charge  of  all  the  gas  bus- 
iness of  the  Consolidated  Company  and  all  the  business  of 
the  Kansas  Natural  Gas  Company,  by  its  receivers,  and 
manage  the  corporate  property  and  business,  protecting  all 
gas  consumers  and  the  public  until  the  abuses  are  fully  cor- 
rected." 

And  here  is  presented  a  question  of  conflicting  jurisdic- 
tion. It  is  brought  to  the  attention  of  this  court  on  the 
argument  on  February  3,  1913,  that  receivers  have  been 
appointed  for  all  the  property  of  the  Kansas  Natural  Gas 
Company  in  the  Federal  Court  for  the  District  of  Kansas, 
and  that  such  receivers  are  now  in  charge.  It  seems  that 
on  October  9,  1912,  after  the  trial  of  this  case  on  October 
1,  1912,  a  suit  was  brought  in  the  Federal  Court  at  Kansas 
City,  Kansas,  by  one  John  L.  McKinney,  a  bond  holder, 
against  the  Kansas  Natural  Gas  Company,  and  that  the 
President  of  the  Kansas  Natural  Gas  Company,  who  was 
also  attorney  and  of  counsel  for  the  defendant  company 
in  the  case  in  this  court,  appeared  with  the  complainant  in 
the  federal  court,  admitted  all  the  allegations  of  the  com- 
plaint, confessed  insolvency,  waived  notice  of  the  application 
for  a  receiver  and  receivers  were  appointed ;  he  himself  being 
one  of  the  three  receivers  appointed  by  the  court.  This 
court  cannot  enjoin  the  receivers  of  the  Federal  Court  or 
render  any  effective  judgment,  because  the  Kansas  Natural 
Gas  Company  is  not  in  the  possession  of  the  property — in  a 


RECEIVERS ORIGINAL    PROCEEDINGS.  1205 

word,   this   court   is   powerless   to   execute   its   decrees   herein 

3|c         sf:         sjc 

The  receivers  herein  appointed  will  be  directed  in  con- 
junction with  the  Attorney  General  of  the  state  to  appear 
in  the  federal  court,  urge  the  prior  jurisdiction  of  this  court 
and  the  rights  of  the  state  of  Kansas  herein  and  petition  the 
discharge  of  the  receivers  appointed  at  the  instance  of  the 
bond  holders  and  pray  a  delivery  of  the  property  to  the 
receivers   appointed  by   this   court.        *      *     * 

It  is  further  ordered,  [that]  *  *  *  the  receivers  herein 
appointed  by  this  court  for  the  Kansas  Natural  Gas  Com- 
pany are  hereby  ordered  and  directed  in  conjunction  with 
the  Attorney  General  of  the  stale  of  Kansas  to  appear  in 
the  said  United  States  Court  and  they  are  directed  to  urge 
the  prior  jurisdiction  of  this  court  over  the  subject  matter 
and  the  parties  and  the  rights  of  the  state  of  Kansas,  herein; 
and  petition  a  discharge  of  the  Receivers  appointed  at  the 
instance  of  the  bond  holders  and  pray  a  delivery  of  the 
property  to  the  receivers  appointed  by  this  court.     *     *     * 

Wherefore,  and  in  obedience  to  the  order  of  the  Mont- 
g-omery  County  District  Court  as  above,  and  having  dis- 
closed to  this  Court  facts  and  circumstances  which  if  made 
known  to  this  court  at  the  time  of  the  application  for  the 
appointment  of  receivers  in  this  cause  was  made  to  this 
court,  would  have  caused  this  court  to  refuse  such  applica- 
tion, and  which  demonstrates  the  prior  jurisdiction  of  the 
District  Court  of  Montgomery  County,  Kansas,  and  the 
present  right  of  said  last  named  Court  to  alone  exercise 
dominion  over  the  properties  hereinbefore  referred  to,  these 
petitioners  respectfully  appear  before  this  Honorable  Court 
and  urge  the  prior  jurisdiction  of  the  Montgomery  County 
District  Court  and  respectfully  show  that  the  State  of 
Kansas  is  without  adequate  power  to  enforce  its  laws  and 
vindicate  its  offended  authority,  and  that  the  District  Court 
of  Montgomery  County,  Kansas,  is  powerless  to  enforce  its 
judgment  because  the  property  of  the  Kansas  Natural  Gas 


1206  SUITS   IN   EQUITY. 

Company  is  now  in  the  control  of  this  Honorable  Court 
through  its  receivers  heretofore  appointed,  and  these  your 
petitioners  respectfully  petition  the  discharge  of  the  receiv- 
ers of  this  court  and  pray  a  delivery  of  the  property  of  the 
Kansas  Natural  Gas  Company  to  the  receivers  of  the  Mont- 
gomery County,  Kansas,  District  Court.  And  this  your 
petitioners,  as  in  duty  bound,  will  ever  pray. 

John   S.   Dawson, 

Attorney  General  of  the  State  of  Kansas. 

John  M.  Landon, 

R.    S.    Litchfield, 

Petitioners. 
By   John    H.   At  wood. 

Their   Solicitor. 


No.  806. 

Petition  of  Receivers  of  Gas  Company  for  Authority  to  Execute 
Certain  Contracts,  and  Order  Thereon. 

[Caption.] 

The  petition  of  Conway  F.  Holmes.  Geo.  F.  Sharrit,  and 
Eugene  Mackey,  Receivers  of  the  Kansas  Natural  Gas  Com- 
pany,   respectfully   shows : 

1.  That  your  receivers  have  entered  into  negotiations  with 
The  Sedgwick  Oil  Company,  a  corporation,  and  now  have 
ready  to  close,  a  contract  for  the  gas  produced  and  to  be 
produced   from   the    following   described   lease,   to-wit : 

The  East  Half  of  the  Southwest  Quarter  of  the  South- 
east Quarter;  and  the  West  Half  of  the  Southeast  Quarter 
of  the  Southeast  Quarter  of  Section  20;  and  the  South  Half 
of  the  Northeast  Quarter  of  the  Northwest  Quarter;  and 
the  Southeast  Quarter  of  the  Northwest  Quarter  of  Section 
28;  all  in  Township  21  North,  Range  14  East,  Tulsa  County, 
Oklahoma,  containing  100  acres,  more  or  less. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1207 

upon  terms  and  conditions  satisfactory  to  your  said  receiv- 
ers, and  said  receivers  recommend  the  execution  of  said  con- 
tract. 

2.  Your  said  receivers  further  represent  that  they  have 
entered  into  negotiations  with  A.  T.  Sticelbar,  A.  R.  Jones, 
D.  J.  O'Connor  and  C.  S.  Kunny,  of  Independence,  Kansas, 
and  now  have  ready  to  close,  a  contract  for  gas  produced 
and  to  be  produced  from  the  following  described  lease, 
to-wit : 

The  North  Half  of  the  Southeast  Quarter  and  the  South- 
west Quarter  of  the  Southeast  quarter  and  the  West  Half 
of  the  Southeast  quarter  of  the  Southeast  quarter  of  the 
Southeast  Quarter  and  the  South  Half  of  the  Southwest 
Quarter  of  the  Northeast  Quarter  and  the  South  Half  of 
the  Southeast  Quarter  of  the  Northeast  Quarter,  and  the 
Northeast  Quarter  of  the  Southeast  Quarter  of  the  North- 
east Quarter,  all  in  Section  21,  Township  21  North,  Range 
14  East,  Tulsa  County,  Oklahoma,  containing  190  acres 
more  or  less, 

upon  terms  and  conditions  satisfactory  to  your  said  receiv- 
ers, and  said  receivers  recommend  the  execution  of  said 
contract. 

3.  That  your  receivers  have  entered  into  negotiations  with 
the  Dorathea  Oil  Company,  a  corporation,  and  now  have 
ready  to  close  a  contract,  for  the  gas  produced  and  to  be 
produced    from   the    following   described   lease,    to-wit: 

The  Northeast  Quarter  of  the  Southeast  Quarter  and  the 
southwest  Quarter  of  the  southeast  quarter  of  the  southwest 
quarter  of  Section  29,  Township  21  North,  Range  14  east, 
Tulsa  County,  Oklahoma,  containing  50  acres,  more  or  less, 

upon  terms  and  conditions  satisfactory  to  your  said  receiv- 
ers, and  said  receivers  recommend  the  execution  of  said 
contract. 


1208  SUITS   IN    EQUITY, 

4.  Your  said  receivers  further  represent  that  they  have 
entered  into  negotiations  with  the  Texas  Producing  Com- 
pany, a  corporation,  and  now  have  ready  to  close  a  con- 
tract, for  gas  produced  and  to  be  produced  from  the  follow- 
ing described  lease,  to-wit : 

The  southwest  quarter  of  the  southeast  quarter  of  the 
southwest  quarter,  less  5  acres  reserved  for  Owasso  Ceme- 
tery, and  the  North  half  of  the  Southeast  quarter  of  the 
Southwest  quarter  and  the  Northeast  quarter  of  the  South- 
west quarter,  all  in  Section  29,  Township  21  North,  Range 
14  East,  Tulsa  County,  Oklahoma,  containing  65  acres, 
more  or  less, 

upon  terms  and  conditions  satisfactory  to  your  said  receiv- 
ers, and  said  receivers  recommend  the  execution  of  said 
contract. 

5.  That  your  said  receivers  have  entered  into  negotiations 
with  C.  E.  Roth,  and  now  have  ready  to  close  a  contract, 
for  the  gas  produced,  and  to  be  produced  from  the  follow- 
ing described  lease,  to-wit: 

The  East  half  of  the  Northwest  quarter  and  the  South- 
west quarter  of  the  Northeast  quarter  and  the  Northwest 
quarter  of  the  Southeast  quarter,  all  in  Section  30,  Town- 
ship 33,  Range  16,  Montgomery  County,  Kansas,  containing 
160  acres,  more   or  less, 

upon  terms  and  conditions  satisfactory  to  your  said  receiv- 
ers, and  said  receivers  recommend  the  execution  of  said 
contract. 

Your  said  receivers  further  represent  and  sliow  that  all 
of  said  contracts  are  upon  the  best  possible,  obtainable  terms 
and  conditions  and  that  it  is  necessary  for  your  receivers  to 
secure  the  largest  possible  supply  of  gas  for  consumption 
during   the   present   winter. 


RECEIVERS — ORIGINAL   PROCEEDINGS.  1209 

Your  said  receivers  recommend  that  the  last  mentioned 
contract  be  made  and  entered  into  by  the  receivers  of  the 
Kansas  Natural  Gas  Company;  that  the  contracts  on  leases, 
referred  to  in  paragraphs  (1)  and  (2)  hereof,  are  upon 
property  located  in  Oklahoma,  and  your  said  receivers  rep- 
resent and  show  that  said  contracts  should  be  made  and  exe- 
cuted in  the  name  of  The  Marnet  Mining  Company,  a  West 
Virginia  corporation.  Said  receivers  further  represent  and 
show  that  the  contracts  on  leases  described  in  paragraphs 
(3)  and  (4)  hereof  are  also  on  properties  in  Oklahoma, 
and  recommend  that  said  contracts  be  made  in  the  name  of 
The  Marnet  Mining  Company  and  guaranteed  by  the  receiv- 
ers of  the  Kansas  Natural  Gas  Company. 

Wherefore,  your  receivers  pray  for  an  order  authorizing 
and  directing  them  to  execute  said  contracts  and  each  of 
them  and  to  guarantee  the  contracts  on  leases  described  in 
paragraphs  (3)  and  (4)  of  said  petition,  and  for  all  further 
proper  orders   in  the  premises. 

John   J.   Jones, 
Solicitor   for   Receivers   of   the 
Kansas  Natural  Gas  Company. 
State  of  Kansas, 

County  of  Montgomery — ss. 

I,  Geo.  F.  Sharitt,  one  of  the  receivers  of  the  Kansas 
Natural  Gas  Company,  have  read  the  foregoing  petition  and 
the  facts  therein  stated  are  true,  as  I  verily  believe. 

Geo.  F.   Sharitt. 
Subscribed  and  sworn  to  before  me  this  27th  day  of  No- 
vember, A.  D.   1912. 

Walter  S.   Sickels, 

Notary  Public. 

Order. 

Now  on  this  29th  day  of  November.   A.   D.    1912,  upon 

presentation    and    full    consideration    of    the    above    petition 

and    the    court    being    fully    advised    in    the    premises,    it    is 

ordered  that  said  receivers  be  and  they  are  hereby  author- 


\ 


1210  SUITS   IN   EQUITY. 

ized  and  directed  to  execute  the  contracts  mentioned  in  the 
above  petition,  and  recommended  by  said  receivers  for  exe- 
cution, and  in  the  manner  therein  stated. 

John  C.  Pollock, 

Judge. 


No.  807. 

Petition  of  Receivers  for  Appointment  of  Attorney  and  Coun- 
sel, and  Order  Appointing  John  J.  Jones. 

[Caption.] 

To  the  Honorable  the  Judges  of  the  Above  Court. 

The  petition  of  Conway  F.  Holmes,  George  F.  Sharitt 
and  Eugene  Mackey,  Receivers  appointed  by  this  Honorable 
Court  of  and  for  the  above  named  defendant,  Kansas  Nat- 
ural Gas  Company,  respectfully  report  and  state  to  this 
honorable  court,  that  they  have  selected  as  the  attorney  and 
counsel  of  and  for  the  receivers,  John  J.  Jones,  Esq.,  of 
Chanute,  Kansas;  this  because  he  is  a  fit  person  to  so 
act  because  learned  in  the  law  and  also  because  he  has  been 
the  attorney  of  the  defendant  company  for  many  years  and 
well  acquainted  with  the  law  governing  the  oil  and  gas 
producing,  transporting  and  marketing  business  and  also 
with  several  suits  of  importance  now  pending  against  the 
Receivers,  which  it  is  necessary  should  be  prosecuted  and 
defended  by  the  Receivers. 

Your  petitioners  and  receivers  therefore  recommend  that 
this  court  formally  appoint  the  said  Jones  as  their  attorney 
and  counsel  in  matters  growing  out  of  the  Receivership. 

And  they  will  ever  pray,   etc. 

C.    F.    Holmes, 
I  Geo.   F,    Sharitt, 

Eugene   Mackey, 
Receivers  of  The  Kansas  Natural  Gas  Company. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1211 

And  now  October  28,  1912,  upon  the  presentation  and 
full  consideration  of  the  above  petition  and  recommendation, 
the  court  being  fully  advised  in  the  premises  and  of  the 
fitness  of  the  said  John  J.  Jones,  Esq.,  he  is  now  and  hereby 
appointed  the  attorney  and  counsel  of  the  Receivers,  effective 
Oct.  10,  1912,  at  such  recompense  and  remuneration  as 
may   hereafter   be   fixed   and   allowed   by   the   court. 

John  C.  Pollock, 

Judge. 


No.  808. 

Petition  of  Receivers  for  Order  Directing  them  to  Advertise 
for  Bonds  Sufficient  to  Meet  Sinking  Fund  Payments,  and 
Order  of  Court  Thereon. 

[Caption.] 

The  petition  of  Conway  F.  Holmes,  George  F.  Sharitt 
and  Eugene  Mackey,  Receivers  of  the  Kansas  Natural  Gas 
Company,  represents  and  declares  to  this  honorable  court 
that  the  company  operates,  under  lease,  a  system  of  gas  pipe 
lines  substantially  18  inches  in  diameter,  with  all  field,  gath- 
ering and  branch  lines  running  to  the  same,  and  extending 
from  a  point  about  one  rod  north  of  the  Kansas-Oklahoma 
State  line,  and  extending  southwardly  across  such  line  into 
Washington  County.  Oklahoma,  and  to  a  point  in  the  Hog- 
shooter   Field,    so-called. 

That  this  gas  pipe  line  system  is  owned  by  the  Marnet 
Mining   Company,    a   West   Virginia   corporation. 

That  by  the  terms  under  which  the  Kansas  Natural  Gas 
Company  leases  and  operates  the  same,  that  Company  is  re- 
quired to  pay  a  rental  sufficient  to  enable  The  Marnet  Min- 
ing Company  to  meet  all  the  sinking  fund  payments  and 
interest  payments  required  under  a  certain  bond  issue  of 
the  Marnet  Mining  Company,  secured  by  a  mortgage  upon 
all  of  its  pipe  lines  and  property  wheresoever  situated. 

That  by  the  terms  of  the  said  mortgage,  as  set  out  in  the 
22nd   paragraph   of  the  bill  filed  herein,   a   sinking  fund  of 


^1212 


SUITS   IN    EQUITY. 


ten  per  cent  (10%)  of  the  amount  of  bonds  then  outstand- 
ing, is  required  to  be  paid  each  year;  that  this  ten  per  cent- 
(10%)  is  to  be  paid  in  monthly  installments  and  that  the 
monthly  installments  shall  be  as  follows : 

For  August,  four  per  cent  (4%)  of  such  10%;  for  Sep- 
tember, three  per  cent  (3%)  ;  October  three  per  cent  (3%)  ; 
November  four  per  cent  (4%)  and  December  nine  per  cent 
(9%). 

That  these  percentages  amount  to  the  following  sums: 

August     $8,000 

September 6,000 

October     6,000 

November     8,000 

December     18,000 

That  no  part  of  the  sinking  fund  payments  for  the  said 
months  of  August,  September,  October,  November  and  De- 
cember have  been  paid. 

.  That  in  addition  thereto,  on  December  1,  1912,  semi-an- 
nual interest  coupons  on  all  bonds  of  the  Marnet  Company 
then  outstanding  mature  and  aggregate  $23,790.00;  that  it 
is  vital  to  the  continued  operation  of  the  system  of  the 
Kansas  Natural  Gas  Company  that  its  lease  of  the  Marnet 
lines  be  kept  alive  and  not  be  allowed  to  forfeit  or  lapse, 
inasmuch  as  sixty  per  cent  (60%)  estimated,  of  all  the 
gas  which  will  be  marketed  and  sold  through  the  Kansas 
system,  passes  through  and  is  obtained  from  the  Marnet 
lines. 

That  the  mortgage  and  bonds  of  the  Marnet  Company 
contain  a  provision  that  instead  of  making  the  said  sink- 
ing fund  payments  in  cash,  bonds  may  be  purchased  on  the 
open  market,  equal  at  their  par  value,  to  the  amount  of 
such  sinking  fund  payments,  and  such  bonds  delivered  to 
the  Trustee  under  the  mortgage  in  lieu  of  such  cash. 

Heretofore  bonds  sufficient  to  make  the  said  sinking  fund 
payments  have  been  purchased  in  the  open  market  as  low 
as  $555  per  bond,  and  your  receivers  believe  that  they  can 


RECEIVERS ORIGINAL    PROCEEDINGS.  1213 

now  purchase  sufficient  bonds  for  the  sinking  fund  payments 
of  August,  September,  October,  November  and  December, 
1912,    at  the   same,    or   perhaps  better  figure. 

Your  petitioners,  for  the  information  of  the  court  and 
to  insure  the  court  that  the  application  of  all  moneys  paid 
under  the  said  lease  shall  be  used  in  the  discharge  of  the 
said  sinking  fund  payments,  now  represent  to  the  court  that 
the  president  of  the  Marnet  Alining  Company  is  one  of 
your  Receivers,  and  the  Secretary  and  Treasurer  of  the 
Marnet   Company   is  now  the   Treasurer   for  the   Receivers. 

Wherefore,  your  Receivers  pray  this  Honorable  court  that 
out  of  and  from  moneys  received  from  the  sales  of  gas 
through  the  system  of  the  Kansas  Natural  Gas  Company, 
they  be  ordered  and  directed  to  advertise  for  bonds  suffi- 
cient to  meet  the  said  sinking  fund  payments  of  August, 
September,  October,  November  and  December,  and  to  pur- 
chase said  bonds  at  the  lowest  price  oflfered,  and  also  to  pay 
the  sum  of  $23,790.00,  the  amount  of  interest  due  on  the 
said  bonds  on  Deceijiber   1,   1912. 

Your  petitioners  further  aver  that  the  rental  due  under 
its  lease  of  the  Marnet  Mining  Company,  is  a  sum  sufficient 
to  meet  and  discharge  all  taxes  thereon,  and  such  sinking 
fund  and  interest  payments,  and  that  all  taxes  upon  the 
Marnet  system  have  been  paid  by  the  Kansas  Natural  Gas 
Company,  so  that  none  thereon  remain  in  arrears.  It  there- 
fore follows  that  there  are  no  other  payments  of  rental 
required  from  the  Kansas  Natural  Gas  Company  except  the 
said  sinking  fund  and  interest  payments. 

And  your  petitioners  will  ever  pray.  etc. 

Conway  F.   Holmes, 
Geo,   F.   Sharitt, 
Eugene  Mackey, 
Receivers  of  the  Kansas  Natural 
Gas  Company. 
John  J.  Jones, 

Solicitor  for  said  Receivers. 


1214  SUITS   IN    EQUITY. 

No.  809. 

Order  Directing  Receivers  as  to  Building  and  Construction 
of  Betterments  under  Way,  etc. 

[Caption.']  • 

And  now,  October  22,  1912,  this  cause  came  on  for 
hearing  upon  the  application  of  the  receivers  for  permission 
to  continue  the  building  and  construction  of  the  betterments 
under  way  by  the  company  at  the  time  the  receivers  herein 
were  appointed,  and  said  petition  was  granted  upon  condition 
that  the  receivers — 

(a)  Secure  and  file  in  these  proceedings  the  written  con- 
sent signed  by  the  trustee  of  the  first  mortgage  to  the  ex- 
penditures prayed  for  in  said  petition. 

(b)  Secure  and  file  in  these  proceedings  the  written  con- 
sent signed  by  the  trustee  of  the  second  mortgage  to  the 
expenditures  prayed  for  in  said  petition. 

(c)  That  the  receivers  make  and  file  herein  at  the  very 
earliest  moment,  and  with  the  least  possible  delay,  a  report 
to  this  court  showing:  (1)  The  cost  per  thousand  cubic 
feet  of  procuring  and  transporting  from  some  common  ini- 
tial point  all  gas  carried  through  the  company's  system  to 
each  of  the  many  cities  to  which  the  operated  lines  of  the 
company  run;  (2)  the  value  and  worth  of  the  gas  per  thou- 
sand cubic  feet  delivered  at  the  gates  of  each  of  the  said 
cities. 

It  being  the  intent  and  meaning  of  this  order  that  the  re- 
ceivers furnish  the  court  with  all  information  showing  defi- 
nitely and  exactly  the  actual  cost  and  worth  of  the  gas  per 
thousand  cubic  feet  delivered  at  the  gates  of  each  city  when 
metered  to  the  distributing  company  at  the  gates  of  the  city. 

In  making  the  said  reports  the  receivers  are  authorized  to 
engage  such  experts  as  in  their  judgment  they  may  deem 
best.  The  receivers  are  enjoined  said  report  must  be  definite, 
accurate  and  exact.  John  C.  Pollock, 

Judge. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1215 

No.  810. 

Order  Extending  Receivership  in  One  Case  to  the  Property 
Involved  in  Another  Case. 
[Caption.] 

On  motion  of  complainant,  the  defendant,  The  Kansas 
Natural  Gas  Company,  herein  appearing  and  consenting 
thereto, 

It  is  ordered,  that  the  receivership  heretofore  existing  by 
order  of  this  court  in  a  certain  suit,  No.  1351,  wherein  John 
L.  McKinney  and  The  Fidelity  Title  &  Trust  Company  were 
complainants,  and  The  Kansas  Natural  Gas  Company  defend- 
ant, be  and  the  same  hereby  is  extended  on  the  same  terms 
and  conditions  to  this  suit,  and  the  receivers,  Conway  F. 
Holmes,  George  F.  Sharitt  and  Eugene  Mackey,  be  and  they 
are  hereby  appointed  receivers  of  all  and  singular  the  prop- 
erty described  in  the  bill  of  complaint  herein. 

John  C.  Pollock, 
United   States  District  Judge. 


No.  811. 

Order  Giving  Surviving  Receiver  Sole  Authority. 

[Caption.] 

Now  on  this  25th  day  of  March,  1916,  this  cause  came  on 
for  hearing  upon  the  application  of  John  M.  Landon,  receiver, 
for  such  proceedings  as  may  be  proper  in  the  premises  by 
reason  of  the  death  of  R.  S.  Litchfield,  and  it  being  called  to 
the  attention  of  the  court  that  R.  S.  Litchfield,  one  of  the 
receivers  of  The  Kansas  Natural  Gas  Company,  appointed  in 
the  above  entitled  action  by  this  court  on  February  15,  1913, 
departed  this  life  on  or  about  the  20th  day  of  March,  1916, 
that  the  estate  entrusted  to  the  said  John  M.  Landon  and 
R.  S.  Litchfield,  as  receivers,  is  not  fully  administered  or 
settled,  and  that  it  is  necessary  that  the  receivership  be  con- 
tinued; and  it  further  appearing  that  the  business,  estate  and 


1216  SUITS   IN    EQUITY. 

affairs  of  said  receivership  is  in  such  condition  and  being  so 
directed  that  the  surviving  receiver  is  fully  acquainted  and 
conversant  therewith,  and  qualified,  able  and  willing  to  con- 
tinue the  administration  thereof  under  the  direction  of  this 
court,  and  that  a  successor  to  the  said  R.  S.  Litchfield  is  not 
necessary  or  advisable  at  this  time. 

It  is  therefore  by  the  court  ordered  that  John  M.  Landon, 
the  surviving  receiver  under  the  former  orders  of  this  court, 
be  and  he  hereby  is  continued  as  receiver  and  appointed  and 
constituted  sole  receiver  of  and  for  all  of  the  property  and 
assets  of  Kansas  Natural  Gas  Company  heretofore  in  the  pos- 
session and  control  of  John  M.  Landon  and  R.  S.  Litchfield, 
and  all  other  assets  and  property  of  Kansas  Natural  Gas 
Company.  It  is  further  ordered  that  the  said  John  M.  Lan- 
don as  sole  receiver  be  and  he  hereby  is  given  and  granted 
all  the  powers  and  authority  heretofore  conferred  upon  the 
receivers  of  this  court  aforesaid,  by  the  former  orders  of  this 
court  or  by  law,  and  that  said  John  M.  Landon  execute  bond 
in  the  sum  of  $50,000  conditioned  for  the  faithful  perform- 
ance of  his  duties  of  such  receiver,  and  that  all  acts,  matters 
and  things  done  and  performed  ad  interim  from  the  death  of 
R.  S.  Litchfield  to  the  date  hereof  be  and  they  are  hereby 
ratified  and  confirmed. 


No.  812. 

Order  Appointing  Ancillary  Receivers. 

[Caption.] 

Now  on  this  9th  day  of  January,  A.  D.  1915,  this  cause 
came  on  for  further  hearing  upon  the  petition  in  intervention 
of  John  M,  Landon  and  R.  S.  Litchfield,  and  upon  the  writ- 
ten consent  of  the  complainants,  defendants  and  interveners, 
and  Marnet  Mining  Company,  and  waiving  all  notice  of  the 
application  for  the  appointment  of  ancillary  receivers,  com- 
plainants appearing  by  Charles  Blood   Smith,  their  solicitor. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1217 

and  Kansas  Natural  Gas  Company  by  V.  A.  Hays,  its  presi- 
dent; Kansas  City  Pipe  Line  Company  and  Fidelity  Trust 
Company,  by  J.  W.  Dana  and  George  R.  Allen,  their  solicit- 
ors, and  Marnet  Mining  Company  by  T.  S.  Salathiel,,  its 
solicitor,  and  it  appearing  to  the  court  that  by  virtue  of  or- 
ders heretofore  entered  in  this  cause  said  interveners,  John 
M.  Landon  and  R.  S.  Litchfield,  have  taken  possession  of 
and  are  now  controlling  and  operating  the  property  of  the 
said  Kansas  Natural  Gas  Company,  Marnet  Mining  Com- 
pany and  Kansas  City  Pipe  Line  Company  within  the  states 
of  Kansas,  Oklahoma  and  Missouri,  and  it  further  appear- 
ing to  the  court  that  all  pipe  lines  owned  and  leased  by  the 
said  Kansas  Natural  Gas  Company,  Marnet  Mining  Com- 
pany and  Kansas  City  Pipe  Line  Company  extending  from 
the  state  of  Oklahoma  through  the  state  of  Kansas  and  to 
certain  cities  in  the  state  of  Missouri,  constituting  a  con- 
tinuous pipe  line  for  the  transportation  and  distribution  of 
natural  gas,  are  of  a  fixed  character  and  that  the  properties 
above  mentioned  constitute  one  complete  system  or  unit 
which  can  not  be  operated  except  as  one  connected  unit  or 
system,  and  it  is  necessary  for  the  operation  of  said  plant 
and  for  the  preservation  of  the  property  that  the  same  be 
managed  throughout  by  the  same  administrative  officers,  and 
it  further  appearing  that  in  order  to  protect  and  preserve  the 
reversionary  estate  and  potential,  possession  of  the  receiver  of 
this  court  and  to  carry  out  the  provisions  of  a  certain  stipula- 
tion of  all  parties  in  interest,  dated  December  17,  1914,  and 
of  record  in  this  cause,  the  said  interveners  should  be  ap- 
pointed ancillary  receivers  for  the  properties  above  mentioned 
situated  in  the  eastern  district  of  Oklahoma  and  the  western 
district  of  Missouri. 

It  is  therefore  ordered,  adjudged  and  decreed  that  the 
prayer  of  said  intervening  petition  of  John  M.  Landon  and 
R.  S.  Litchfield  be  granted,  and  that  the  said  John  M.  Lan- 
don and  R.   S.  Litchfield  be  and  they  are  now  hereby  ap- 


1218  SUITS   IN    EQUITY. 

pointed  ancillary  receivers  of  all  the  property  of  the  Kansas 
Natural  Gas  Company,  Kansas  City  Pipe  Line  Company  and 
the  Marnet  Mining  Company,  above  described,  situate  in  the 
eastern  district  of  Oklahoma  and  the  western  district  of 
Missouri. 

That  each  of  the  said  receivers  shall  before  entering  upon 
his  duties  hereunder  give  and  file  with  the  court  a  bond  in 
the  penal  sum  of  twenty  thousand  dollars,  with  surety  or 
sureties,  approved  by  the  court  or  the  clerk  thereof,  and  con- 
ditioned that  he  will  faithfully  perform  his  duty  as  ancillary 
receiver  herein  and  well  and  truly  account  for  any  and  all 
moneys  or  property  coming  into  his  hands  as  such  ancillary 
receiver  and  abide  and  perform  all  things  which  he  is  herein 
or  may  hereafter  be  directed  to  perform  in  this  cause. 

It  is  further  ordered,  adjudged  and  decreed  that  the  said 
John  M.  Landon  and  R.  S.  Litchfield,  and  their  successors, 
shall  have  the  right  as  receivers  ancillary  to  their  appoint- 
ment as  receivers  of  the  district  court  of  Montgomery  county, 
Kansas,  to  retain  the  actual  possession,  control  and  manage- 
ment of  the  estate,  property,  money,  funds,  assets  and  earn- 
ings of  the  said  Marnet  Mining  Company,  Kansas  City  Pipe 
Line  Company  and  Kansas  Natural  Gas  Company,  including 
the  leasehold  estates,  contracts  of  and  with  the  Kansas  City 
Pipe  Line  Company  and  the  Marnet  Mining  Company  situ- 
ated in  the  eastern  district  of  Oklahoma  and  the  western  dis- 
trict of  Missouri,  under  the  terms  and  conditions  expressed 
in  the  order  of  this  court  made  January  24,  1914,  as  modi- 
fied ;  the  intent  hereof  being  that  when  the  district  court  of 
Montgomery  county,  Kansas,  has  surrendered,  lost  or  aban- 
doned possession,  jurisdiction  or  control  over  said  properties 
or  any  part  thereof  (otherwise  than  loss  of  control  resulting 
from  the  sale  or  other  disposition  by  order  of  said  court),  the 
same  shall  thereupon  revert  to  the  possession  of  the  receiver 
of  this  court ;  to  the  end  that  no  other  person,  officer  oi  court 
shall  be  enabled   or  permitted   to   seize,   levy  upon,   possess, 


RECEIVERS ORIGINAL    PROCEEDINGS.  1219 

control  or  exercise  jurisdiction  over  any  of  the  properties, 
estates  or  assets  of  said  Kansas  Natural  Gas  Company,  in- 
cluding the  leasehold,  estates  and  contracts  of  and  with  the 
Kansas  City  Pipe  Line  Company  and  the  Marnet  Mining 
Company,  and  any  other  property,  assets  or  earnings  of  the 
Marnet  Mining  Company  and  the  Kansas  City  Pipe  Line 
Company  within  this  the  eighth  judicial  circuit,  except  the 
district  court  of  Montgomery  county,  Kansas,  and  the  said  John 
M.  Landon  and  R.  S.  Litchfield,  receivers  appointed  by  said 
court,  and  that,  by  virtue  of  the  prior  right  and  possession  and 
jurisdiction  of  said  court  to  said  properties  situate  in  the  state 
of  Kansas,  pursuant  to  and  upon  the  terms  and  conditions  pro- 
vided for  in  said  order  of  January  24,  1914,  as  modified; 
and  all  persons  and  officers  and  receivers  appointed  by  other 
courts  will  take  notice  hereof  and  they  are  hereby  restrained 
and  enjoined  from  attempting  to  levy  upon,  seize,  possess  or 
control  any  of  the  properties  of  the  Kansas  Natural  Gas 
Company,  including  the  leasehold,  estate  and  contracts  of  and 
with  the  Kansas  City  Pine  Line  Company  and  the  Marnet 
Mining  Company,  and  any  other  property,  assets  or  earnings 
of  the  Marnet  Mining  Company  and  the  Kansas  City  Pipe 
Line  Company,  or  any  part  thereof  situate  in  the  states  of 
Missouri  or  Oklahoma,  and  from  molesting,  disturbing  or 
interfering  with  the  actual  possession  and  control  of  said 
properties  by  the  said  John  M.  Landon  and  R.  S.  Litchfield 
as  ancillary  receivers  of  this  court. 

It  is  further  ordered,  adjudged  and  decreed  that  the  re- 
ceiver of  this  court,  George  F.  Sharitt,  shall  retain  the  rever- 
sionary estate  and  potential  possession  of  the  estates,  proper- 
ties and  assets  of  the  Kansas  Natural  Gas  Company,  includ- 
ing the  leasehold  estates  and  contracts  of  and  with  the  Kan- 
sas City  Pipe  Line  Company  and  Marnet  Mining  Company 
situate  in  the  states  of  Kansas,  Missouri  and  Oklahoma,  or 
elsewhere  in  this  the  eighth  judicial  circuit. 

Ralph  E.  Campbell,  Judge. 


1220 


SUITS    IN    EQUITY. 


No.  813. 


Order  Confirming  and  Continuing  Receivers,  and  Authorizing 
them  to  Accept  Possession  of  Property  from  a  State 
Court. 

[Caption.] 

On  this  5th  day  of  June,  1917,  comes  John  M.  Landon, 
receiver  of  the  properties  of  the  Kansas  Natural  Gas  Com- 
pany, heretofore  appointed  as  such  receiver  by  the  state  court 
of  Montgomery  county,  Kansas,  accompanied  by  his  counsel, 
John  H.  Atwood,  Esq.,  and  T.  S.  Salathiel,  Esq.,  and  pre- 
sents to  this  court  an  order  entered  by  the  state  court  of 
Montgomery  county,  Kansas,  on  the  2nd  day  of  June,  1917, 
approving  his  report  as  such  receiver,  and  his  accounts,  and 
discharging  him  as  such  receiver,  and  directing  him  to  turn 
over  all  the  properties  of  the  Kansas  Natural  Gas  Company 
now  in  his  possession  or  under  his  control  to  this  court;  and 
it  appearing  that  said  Landon  has  heretofore  been  acting  as 
receiver  of  said  properties  under  appointment  heretofore  made 
by  this  court,  and  it  appearing  further  that  George  F.  Sharitt 
is  also  receiver  of  said  properties  under  an  order  of  this  court 
heretofore  made, 

Now,  therefore,  it  is  hereby  ordered  that  said  Landon  and 
said  Sharitt  be  and  they  are  hereby  confirmed  and  continued 
as  receivers  of  said  properties  under  this  court,  each  with  the 
same  powers  as  heretofore  conferred  upon  them  or  either  of 
them; 

Ordered  further,  that  as  such  receivers  of  this  court  they 
forthwith  accept  from  said  state  court  of  Montgomery  county, 
Kansas,  posssession  of  the  properties  belonging  to  said  Kan- 
sas Natural  Gas  Company,  wherever  situated,  in  accordance 
with  the  order  above  mentioned  made  by  said  state  court  of 
Montgomery  county,  Kansas,  and  also  in  accordance  with 
orders  heretofore  made  by  this  court ;  and  that  they  execute 
such  receipt  or  other  papers  upon  taking  possession  as  may 
be  deemed  advisable  by  said  state  court  of  Montgomery 
county,  Kansas; 


RECEIVERS ORIGINAL    PROCEEDINGS.  1221 

Ordered  further,  that  said  John  M.  Landon  as  such  re- 
ceiver continue  in  the  active  charge  of  the  management  and 
operation  of  said  properties  until  the  further  order  of  this 
court ; 

Ordered  further,  that  said  John  M.  Landon  as  such  re- 
ceiver take  any  and  all  steps  necessary  or  advisable  to  main- 
tain any  actions  or  suits  now  pending  to  which  he  is  a  party, 
until  the  further  order  of  this  court ; 

Ordered  further,  that  all  administrative  orders  heretofore 
made  by  the  district  court  of  Montgomery  county,  Kansas, 
relative  to  the  management  and  operation  of  the  properties 
of  the  Kansas  Natural  Gas  Company  by  said  receivers,  and 
now  in  force,  are  hereby  adopted  and  continued  in  full  force 
and  effect  until  the  further  order  of  this  court. 

A.  B.,  Judge. 


No.  814. 

Oath  of  Receiver.  (1) 
[Caption.] 

I,  the  undersigned,  S.  M.,  having  been  appointed  receiver 
of  the  C.  &  D.  Railway  Company,  do  solemnly  swear  that  I 
will  faithfully  perform  the  duties  of  that  office  and  obey  all 
the  orders  of  said  court.     So  help  me  God.  S.  M. 

Subscribed  and  sworn  to  before  me  this day  of . 

J.  S.,  District  Judge. 

(1)  As  to  necessity  for  oath.  See  Union  Trust  Co.  v.  III.,  etc.,  Ry. 
Co..  117  U.  S.  434. 


No.  815. 

Bond  of  Receivers.  (1) 

[Caption.] 

This  undertaking,  made  and  entered  into  the  day  of 

-,  witnesseth:  that  we,  S.  M.,  as  principal,  and  E.  F.  and 


G.  H.^  as  sureties,   do  promise  and  undertake  to  and  with 
the  clerk  of  said  court,  for  the  benefit  of  whom  it  may  con- 


1222  SUITS    IN    EQUITY. 

cern,  in  the  penal  sum  of  dollars,  that  the  said  S.   M. 

will  faithfully  discharge  the  duties  of  receiver  of  the  C.  &  D. 
Railway  Company,  and  obey  all  orders  of  the  court  herein. 

Witness  our  hands  and  seals  this  day  of  ,  1894. 

S.  M.  [Seal.] 
E.  F.  [Seal.] 
G.  H.    [Seal.] 

State  of  , 

County  of  ,  ss. 

I,  E.  F..  one  of  the  sureties  named  in  the  within  Ijond,  do 

swear  that  I  am  pecuniarily  worth  the  sum  of  dollars 

over  and  above  all  my  debts  and  liabilities  and  legal  exemp- 
tions. E.   F. 

Sworn  to  before  me  this  day  of  ,  1894. 

[Seal.]  E.  G.,  Notary  Public. 

Approved  this  day  of ,  1894.  J.  S., 

District  Judge. 

(1)   Receivers  are  required  to  give  bond.     See  Union  Trust  Co.  v. 
111.,  etc.,  Ry.  Co.,  117  U.  S.  434;  Fosdick  v.  Schall,  99  U.  S.  249. 


No.  816. 

Order  Overruling  Petition  to  Rehear  Application  for  Appoint- 
ment of  a  Receiver. 

[Caption.] 

The  petition  of  the  C.  &  D.  Company  to  the  court  to  grant 
a  new  hearing  of  the  application  of  complainant  for  the  ap- 
pointment of  a  receiver,  and  to  set  aside  the  order  heretofore 
made  appointing  a  receiver  in  this  suit,  came  on  to  be  heard 
and  was  argued  by  counsel,  on  consideration  whereof  the 
court  overrules  said  petition. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1223 

No.  817. 

Order  that  Receivers  Give  Notice  to  Stockholders  by 
Publication. 

[Captioji.] 

And  now,  this  day  of  ,  1893.  come  S.  M.  and 

H.  C,  receivers  of  the  property  of  the  C.  D.  Co.,  appointed 
and  confirmed  by  an  order  of  this  court  made  in  this  cause  on 
the  day  of ,  1893,  and  present  their  petition,  veri- 
fied the day  of ,  1893,  upon  consideration  whereof 

.  it  is  by  this  court  hereby 

Ordered  that  the  creditors  of  the  C.  D.  Co.  bring  in  and 
present  to  said  receivers,  in  writing-,  their  several  claims  and 
demands,  and  make  proof  thereof  upon  oath  to  the  satisfac- 
tion of  the  said  receivers,  on  or  before  the  ■ day  of , 

1893,  and  in  default  thereof  that  the  said  creditors  be  de- 
barred from  participating-  in  any  dividend  or  distribution  of 
the  assets  of  said  corporation  which  may  be  made  by  the 
receivers. 

And  it  is  further  ordered  that  the  receivers  give  notice  of 
the  foregoing  order  by  causing  such  notice  to  be  published 
in  the   [iia)ne  of  paper],  a  daily  newspaper  published  in  the 

city  of  ,  once  a  week  for  the  space  of  four  weeks,  the 

first  publication  to  be  made  within  ten  days  from  the  date  of 
this  order.  J.  S., 

Dated  .  District  Judge. 


No.  818. 

Notice  of  Petition  by  Receivers. 

[Caption.] 
Notice  to  A.  B.  Trust  Company  and  the  C.  &  D.  Railway 
Company,  or  their  Solicitors  of  Record: 

You,  and  each  of  you,  are  hereby  notified  that  the  petition 
of  S.  M.  and  H.  C,  receivers  of  the  C.  &  D.  Railway,  a  copy 
of  which  is  hereto  attached  and  made  a  part  hereof,  will  be 
presented   in   the   above   entitled   cause   to   the   above-named 


1224  SUITS  IN   EQUITY. 

court,  or  to  one  of  the  judges  thereof,  in  chambers,  at  the 

city  of ,  on  the  day  of  ,  at  10  o'clock  in  the 

forenoon  of  that  day,  or  so  soon  thereafter  as  the  said  court 
or  judge  may  hear  the  same,  and  that  said  receivers  will  ask 
the  order  of  the  court  thereon  at  that  time.  Z.  &  Z., 

Solicitors  for  S.  M.  and  H.  C,  Receivers  of  the  C.  &  D. 
Railway. 


No.  819. 

Answer  to  Petition.  (1) 

The  District  Court,  of  the  United   States  for  the  Dis- 
trict of . 

The  A.  B.  Trust  Company 

vs. 
The  C.  &  D.  Railway  Company  cf  al. 

The  answer  of  the  Union  Trust  Company,  of ,  to  the 

petition  of  the  C.  &  D.  Railway  Company,  as  to  the  receivers 
in  the  above  entitled  action  appointed  making  certain  pay- 
ments on  the  securities  of  the  Northern  Railroad  Company, 
respectfully  shows  to  this  court : 

That  this  respondent  has  lately  exhibited  and  filed  in  this 
court  its  certain  bill  of  complaint  against  the  said  C.  &  D. 
Railway  Company  and  the  E.  &  F.  Railway  Company,  and 
that,  as  respondent  is  informed  and  believes,  the  defendants 
have  appeared  therein,  and  said  suit  is  now  pending  in  this 
court. 

This  respondent  says  that  all  and  singular  the  allegations 
in  said  bill  of  complaint  as  therein  made  are  true,  and  that 
respondent  refers  to  the  same  on  the  files  of  this  court,  and 
makes  the  same  and  the  allegations  thereof  a  part  of  this 
answer,  the  same  as  if  fully  set  out  and  incorporated  herein. 

Respondent  further  says  that  it  is  informed  and  believes 
that  at  some  time  heretofore,  but  long  after  the  execution  and 
delivery  of  the  bonds  and  mortgages  in  respondent's  said 
bill  of  complaint  mentioned,  as  made  and  delivered  to  this 


RECEIVERS ORIGINAL    PROCEEDINGS.  1225 

respondent  and  its  cesttd  que  trusts,  said  petitioner  did  obtain 
the  stock  of  the  Northern  Railroad  Company,  by  exchanging 
therefor  a  large  amount  of  respondent's  own  stock,  issued  for 
that  purpose. 

Whether  such  exchange  was  valid,  or  within  the  corporate 
powers  of  petitioner,  respondent  is  not  informed ;  but  submits 
that  it  was  invalid  and  beyond  the  powers  of  petitioner. 

Respondent  denies  that  said  stock  of  said  Northern  Rail- 
road Company  was  acquired  at  an  enormous  or  any  outlay. 
It  was  simply  an  exchange  of  stock. 

Respondent  admits  that  the  revenues  of  the  Northern  Rail- 
road Company  are  insufficient  to  meet  its  accrued  and  pres- 
ently accruing  obligations,  and  that  it  is  now  in  the  hands  of 

receivers,  appointed  by  a  court  of ;  and  that  the  interest 

due  on  the  second  mortgage  is  in  default,  and  has  not  been 
and  will  not  be  paid. 

Respondent  does  not  admit  that  the  reason  thereof  is  that 
alleged  in  the  petition.  The  reason  alleged  is  mere  opinion 
and  speculation;  and  respondent  knows  of  no  reason  to  sup- 
pose that  the  management  in  the  future  will  be  improved. 

Quite  likely  a  suit  to  foreclose  the  Northern  second  mort- 
gage will  be  commenced,  but  respondent  denies  that  it  can 
embarrass  petitioner,  as  petitioner  has  not  the  possession  or 
management  of  its  road.  Respondent  has  no  knowledge  as 
to  whether  there  is  any  probability  that  in  the  near  future 
the  Northern  Railroad  Company  can  or  will  earn  its  present 
fixed  charges,  whether  operated  by  the  receivers  or  others. 

If  it  ever  could  do  it,  it  would  be  vastly  more  likely  to  do 
it  if  operated  by  the  trustee  of  the  mortgages  taking  posses- 
sion thereof,  for  it  would  then  have  the  attention  and  interest 
of  owners.  Respondent  has  no  knowledge  or  information  as 
to  the  telegrams  in  the  petition  referred  to;  respondent,  how- 
ever, has  no  doubt  but  that  the  receivers  would  like  the  re- 
ceivers of  the  petitioner's  road,  or  any  one  else,  to  pay  the 
debts  of  the  Northern  Railroad  Company. 


1226  SUITS   IN    EQUITY. 

Respondent  further  shows  that  the  revenues  of  petitioner's 
road  in  the  hands  of  the  receiver  are  insufficient  to  pay  its 
own  current  indebtedness,  which  is  in  default  and  rapidly 
accumulating. 

That  the  part  of  the  road  covered  by  the  mortgage  to 
respondent  is  by  far  the  more  valuable.  Respondent  is  in- 
formed and  believes  that  by  the  report  of  the  receivers  re- 
cently filed,  and  which  respondent  makes  a  part  of  this  an- 
swer, more  than  four-fifths  of  the  income  of  the  road  is  from 
the  part  covered  by  the  mortgages  to  this  respondent. 

That  by  the  terms  of  such  mortgages,  copies  of  which  are 
annexed  to  said  bill  of  complaint  of  this  respondent,  such 
income  belongs  to  and  is  the  property  of  this  respondent,  and 
this  respondent  respectfully  submits  that  this  court,  and  any 
court,  has  no  power  to  take  such  property  from  respondent 
without  its  consent. 

Wherefore  respondent  asks  that  the  prayer  of  said  petition 
be  denied.  Union  Trust  Company, 

[Seal]  By  E.  K.,  President. 

Y.  &  Y., 

Respondent's  Solicitors. 

State  of ,  County  of ,  ss. 

E.  K.,  being  duly  sworn,  says  that  he  is  president  of  Union 
Trust  Company  of  ,  the  respondent  named  in  the  fore- 
going answer;  that  said  answer  is  true  to  the  knowledge  of 
this  deponent,  except  as  to  the  matters  therein  stated  to  be 
alleged  upon  information  and  belief,  and  that  as  to  those 
matters  he  believes  it  to  be  true.  E.  K. 

Sworn  to  before  me  this  day  of  . 


[Seal]  J.  v., 

Notary  Public,  County, 

(1)  Taken  from  the  record  in  Mercantile  Trust  Co.  v.  Missouri, 
Kansas  &  Texas  Ry.  Co.,  pending  in  the  circuit  court  of  the  United 
States  for  the  district  of  Kansas. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1227 

No.  820. 

Petition  of  Defendant  ior  an  Order  Authorizing  Receivers 
to  Deliver  to  it  the  Possession  ol  Railway  Property  in 
their  Hands. 

[Caption.] 

The  petition  of  the  C.  &  D.  Railway  Company,  defendant 
herein,  respectfully  shows  to  this  court: 

Fi'rsL  That  this  is  a  cause  ancillary  to  the  main  suit 
between  the  same  parties,  in  the  district  court  of  the  United 
States  for  the district  of . 

Second.  That  in  the  said  main  suit  the  C.  &  D.  Railway 
Company  has  heretofore  presented  its  petition  praying  for 
an  order  of  the  court  requiring  the  receivers  of  the  C.  &  D. 
Railway  to  turn  over  and  deliver  possession  of  the  said  rail- 
way and  property  to  the  said  C.  &  D.  Railway  Company;  and 
that  prior  to  the  submission  of  the  petition  the  receivers  filed 
a  report,  and  that  upon  the  said  petition  and  report  the  court 
did,  upon  the  day  of  ,  enter  an  order  conform- 
ably to  the  prayer  of  the  said  petition,  and  that  copies  of  the 
said  petition,  and  of  the  said  report,  and  order  of  court  are 
hereto  annexed  and  marked  respectively  Exhibits  A,  B,  and 
C,  and  made  a  part  hereof. 

Wherefore  your  petitioner  prays  that  the  said  order  of  the 
court  may  be  spread  upon  the  records  in  this  court,  and  may 
be  by  this  court  confirmed  and  approved,  and  made  the  order 
of  this  court  in  this  ancillary  cause  so  far  as  the  same  may 
be  necessary  in  order  to  protect  all  the  rights  of  all  the  parties 
in  interest  as  against  the  property  within  the  jurisdiction  of 
this  court.  C.  &  D.  Railway  Co., 

Attest:  By  J.  W.,  3d  Vice-President. 

[6V'rz/.]         H.  B,,  Secretary, 

R.  X., 
R.  L., 
Solicitors  for  C.  &  D.  Ry.  Co. 

\Attach  exhibits  "^,"  ''B  "  and  "C'J 


1228  SUITS   IN    EQUITY. 

No.  821. 

Petition  for  an  Order  upon  a  Defendant  to  Deliver  to  the 
Receivers  the  Deed  Records,  Plats,  and  Other  Muni- 
ments of  Title  (i). 

The  receivers,  S.  M,  and  H,  C,  respectfully  show: 

First.  The  title  papers  to  the  real  property  in  their  pos- 
session consist  of  deeds  of  conveyances  for  ri<^ht  of  way,  depot 
grounds,  and  other  parcels  and  tracts  of  land  used  by  the 
railway  company  in  the  operation  and  maintenance  of  said 
railway,  and  lands  purchased  or  donated  to  said  railway  or  its 
grantors  as  authorized  by  its  charter. 

Second.  That  said  C.  &  D,  Railway  Company,  and  the 
other  corporations  whose  property  is  now  in  the  possession 
of  these  receivers,  and  their  grantors  during  the  time  of  the 
construction  of  said  railways,  and  from  time  to  time  as  their 
requirements  rendered  necessary,  condemned  by  proceedings 
in  court  in  the  different  counties  along  the  lines  of  said  rail- 
ways, tracts  of  land  for  right  of  way,  depot  grounds,  and  for 
other  necessary  purposes,  and  for  their  convenience,  had  pre- 
pared and  on  file  in  their  offices  copies  of  all  such  condemna- 
tion proceedings. 

Third.  That  said  C.  &  D.  Railway  Company,  also  for  the 
convenience  and  use  of  its  officers  and  employees,  that  they 
might  readily  ascertain  the  exact  boundaries  of  the  different 
tracts  and  parcels  of  land,  so  conveyed  to  it  and  its  grantors, 
or  the  other  lines  of  railway  in  its  possession  and  operated  by 
it,  or  condemned  as  aforesaid,  caused  full  and  accurate  surveys 
of  the  same  to  be  made,  and  caused  plat  books  and  surv^eys 
made  thereof,  and  caused  indexes  to  be  prepared  thereof. 

Fourth.  That  said  papers,  records,  plats,  etc.,  show  in 
convenient  shape  all  the  property  along  the  lines  of  said  rail- 
way now  in  the  possession  of  these  receivers,  and  the  title 
thereof,  and  the  rights  of  all  of  said  railways  in  each  piece  of 


RECEIVERS ORIGINAL    PROCEEDINGS.  1229 

said  property,  and  how  acquired,  and  from  whom  and  under 
what  contracts  or  conditions,  if  any. 

Fifth.  That  said  papers,  plats,  etc.,  are  of  great  necessity 
in  the  operation  of  said  railway,  in  that  they  constitute  the 
muniments  of  title  to  all  of  said  property,  and  show  the  bound- 
ary and  extent  thereof  from  actual  surveys,  and  enable  your 
receivers  to  readily  ascertain  what  real  estate  is  covered  by 
the  orders  of  this  court,  of  what  they  are  entitled  to  take  pos- 
session, and  of  what  they  are  required  to  defend  the  posses- 
sion against  adverse  claimants  or  intruders,  and  of  what  they 
may  rightfully  occupy  and  use  in  the  operation  and  mainte- 
nance of  said  railway,  and  by  which-  they  may  ascertain  any 
conditions  upon  which  any  tract  of  land  is  held,  and  deter- 
mine  how,  or  in  what  respect,  they  may  be  required  to  com- 
ply with  demands  on  them  for  performance  of  such  conditions. 

Sixth.  That  these  receivers  require  said  muniments  of 
title  and  surveys  in  many  respects  as  fully  and  as  necessarily 
ai  the  C.  &  D.  Railway  Company  did  at  the  time  they  pro- 
cured the  same. 

Seventh.  That  all  of  said  plats,  surveys  and  books  and 
indexes  are  in  the  possession  of  the  defendant,  the  Missouri 
Pacific  Railway  Company,  and  they  have  neglected  and 
refused  to  deliver  the  same  to  these  receivers,  though 
requested  to  do  so. 

Wherefore,  these  receivers  pray  for  an  order  upon  said 
C.  &  D.  Railway  Company,  defendant  herein,  to  deliver  to 
them  all  of  said  deeds,  papers,  plats,  surveys,  and  books  and 
indexes.  Z.  &  Z., 

Solicitors  for  the  Receivers. 

(i)  The  order  asked  for  in  this  petition  is  usually  included  in  the 
order  appointing  receiver,  and  this  petition  is  only  needed  when  such 
is  omitted  from  the  order  appointing  the  receiver- 


1230  SUITS   IN    EQUITY. 

No.  822. 

Order  Requiring  Defendant  to  Turn  Over  to  Receivers 
Books,  Plats  and  Deeds. 

[Caption.] 

At  this  day  the  petition  of  the  receivers  for  an  order  direct- 
ing the  defendant,  the  C.  &  D.  Railway  Company,  to  deliver 
to  them  certain  deeds,  records,  plats,  surveys  and  other  muni- 
ments of  title  to  the  real  property  in  their  possession  under 
the  order  of  this  court  having-  been  presented  to  this  court,  and 
the  court  having  duly  considered  the  same,  it  is  ordered  that 
the  said  C.  &  D.  Railway  Company  deliver  to  said  receivers 
all  deeds  of  conveyance,  records,  plats,  surveys  and  books, 
and  all  other  papers  and  muniments  of  title  in  their  posses- 
sion or  under  their  control  pertaining  to  or  aflfecting  the  title 
or  right  to  the  possession  of  the  real  estate  in  the  possession 
of  the  receivers  under  the  orders  of.  the  court,  or  show  cause 

on  the day  of ,  at  10  a.  m.,  before  me  at  the  United 

•States  court-room  in  the  city  of .  J.  S., 

Dated .  District  Judge. 

The  foregoing  order  made  absolute,  and  the  receivers  and 
C.  &  D.  Railway  Company  shall  make  schedule,  and  receivers 
shall  receipt  for  same.  J.  S., 

Dated .  District  Judge. 


No.  823. 

Petition  By  Receiver  for  Authority  to  Settle  Traffic  Balance. 

[Caption.] 

Petition  by  the  receivers  for  authority  to  adjust,  settle,  and 
pay  traffic  balances  between  the  C.  &  D.  and  other  rail- 
roads. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1231 

S.  M.  and  H.  C,  receivers  of  the  C.  &  D.  Railway,  respect- 
fully show  : 

I.  By  the  decree  made  in  this  case  on  the day  of 

,  and  filed  herein  on  the day  of ,  being  the  de- 
cree appointing  yonr  petitioners  receivers,  among  others  the 
following  order  was  made  : 

^''  Fifth.  The  matter  of  the  payment  of  balances  due  or  to 
become  due  to  other  railroads  or  transportation  companies 
growing  out  of  the  exchange  of  traffic  is  reserved  for  further 
orders." 

II.  Since  your  receivers  have  taken  possession  of  the  C. 
&  D.  Railway,  there  have  arisen  traffic  balances  between  the 
C.&D.  Railway,  operated  by  your  receivers,  and  other  railways 
and  transportation  companies.  These  traffic  balances  consist 
generally  of, — 

First.  Freight  balances,  which  are  amounts  found  to  be 
due  as  between  freight  delivered  to  connecting  lines  by  the 

C.  &  D.  Railway,  and  received  from  connecting  lines  by  said 
railway. 

Second.  Ticket  accounts.  These  result  from  the  sale  of 
coupon  tickets  by  the  C.  &  D.  Railway  over  foreign  lines, 
and  the  sale  by  foreign  lines  of  such  tickets  over  the  C.  & 

D.  Railway. 

Third.  Mileage  accounts.  These  accounts  comprise  the 
mileage  of  the  cars  of  other  railway  companies  over  the  line 
of  the  C.  &  D.  Railway,  and  the  mileage  of  its  cars  over 
other  railways. 

These  traffic  balances  are  sometimes  in  favor  of  one  road 
and  sometimes  in  favor  of  the  other.  It  is  vitally  necessary 
in  the  transaction  of  railway  business  that  these  traffic  bal- 
ances should  be  promptly  paid  by  the  respective  railways  at 
stated  times. 

III.  There  are  traffic  balances  which  will  soon  have  to  be 
discharged  arising  out  of  the  operation  of  the  railway  in 
charge  of  your  receivers,  which  will  have  to  be  settled,  ad- 
justed, collected,  or  paid  within  a  short  time,  and  your  re- 


1232  SUITS    IX    EQUITY. 

ceivers  should  have  full  authority  to  adjust,  settle,  collect,  or 
pay  them  according  to  the  prevailing  usage  existing  among  rail- 
')vay  companies,  so  that  there  may  be  no  interruption  of  the 
relations  between  the  railway  in  charge  of  your  receivers  and 
other  railways  of  the  country. 

Wherefore  your  petitioners  pray  that  an  order  be  entered 
granting  them  authority  to  adjust,  settle,  collect,  and  pay  all 
traffic  balances  arising  out  of  the  operation  of  the  C.  &  D. 

Railway  since  ,   1894,  and    which  may  hereafter   arise 

from  time  to  time.  Z,  &  Z,, 

Solicitors  for  the  Receivers. 

State  of , 


County  of ,  ss. 

I,  S.  M.,  on  oath,  state  that  I  am  one  of  the  receivers  of  the 
C.  &  D.  Railway  ;  I  have  read  the  foregoing  petition,  and 
the  facts  therein  stated  are  true,  as  I  verily  believe. 

S.  M. 

Subscribed  and  sworn  to  before  me  this day  of . 

[Seal.]  '  E.  G., 

Notary  Public. 

No.  824. 

Order  Authorizing  Receiver  to  Settle  Trarrir-  Balances   (1). 

At  this  day  the  petition  of  the  receivers  for  authority  to 
adjust,  settle,  collect,  and  pay  all  traffic  balances  arising  in 

the  operation  of  the  C.  &  D.  Railway  since ,  1894,  when 

the  receivers  took  possession  of  said  railway,  having  been 
presented  to  the  court,  and  the  court  having  fully  considered 
the  same,  and  being  fully  advised  in  the  premises,  it  is  or- 
dered that  the  receivers  be  and  are  hereby  authorized  to 
adjust,  settle,  collect,  and  pay  all  traffic  balances  between  the 
railway  in  their  charge  and  other  railroads  or  transportation 
companies  arising  out  of  the  operation  of  the  C.  &  D,  Rail- 


RECEIVERS ORIGINAL    PROCEEDINGS.  1233 

way  since ,  1894,  and  which  shall  hereafter  arise,  accord- 
ing to  the  usual  methods  prevailing  among  the  railroad  and 
transportation  companies  of  the  country.  J.  S., 

District  Judge. 

(1)  Current  traffic  balances  are  entitled  to  be  paid  in  full  out  of 
current  earnings  as  a  preferential  lien. 


No.  825. 
Order  to  Pay  Rent. 

[Caption.] 

This  day  came  the  receiver  and  represented  to  the  court 
that  the  installment  of  rent  due  to  the  Northern  Railway 
Company  the  day  of  ,  18 — ,  under  the  lease  re- 
ferred to  in  the  bill  herein,  has  not  been  paid,  and  that  the 
period  of  ninety  days'  grace  provided  in  said  lease  will  expire 

the day  of ,  18 — ,  and  that  said  receiver  expects  to 

have  on  hand  sufficient  funds  to  pay  said  rental  on  or  before 
said  last-named  date,  and  asks  authority  of  the  court  to  make 
such  payment,  and  thereupon  it  is  ordered  by  the  court  that 
the  receiver  be  and  is  hereby  authorized  to  make  such  pay- 
ment. J.  S., 

District  Judge. 


No.  826. 

Petition  of  Receiver  for  Permission  to  Defend  Suits  and 

Compromise  Claims. 
[Caption.'] 

Your  petitioner,  S.  M.,  would  respectfully  show  to  your 
honors  that  prior  to  his  appointment  as  receiver  herein  cer- 
tain suits  had  been  brought  against  the  C.  &  D.  Railway  Co., 
praying  for  damages  to  person  or  property;  that  under  the 
laws  of  the  state  of  ,  and  ,  such  claims,  when  re- 
duced to  judgment,  are  liens  prior  in  right  to  the  mortgage 


1234  SUITS   IN    EQUITY. 

issued  by  the  defendant  upon  its  property,  and  that  there 

are  certain  suits  pending  in   the  courts  of  the  state  of , 

and  in  the  Circuit  Court  of  the  United  States  for  the , 

district  of . 

Your  petitioner  further  shows  that  such  suits  or  claims  can 
generally  be  compromised  and  adjusted  at  sums  which  it  is 
to  the  interest  of  the  defendant  and  its  creditors  to  prompt- 
ly accept,  thereby  saving  much  cost  of  litigation  and  other 
considerable  amounts  as  compared  with  the  usual  expense 
and  the  results  of  such  litigation  ;  and  that  other  of  such 
suits  will  have  to  be  defended  by  your  petitioner  as  receiver 
at  the  cost  of  the  fund  in  the  hand  of  your  petitioner. 

Your  petitioner,  therefore  prays  that  an  order  of  court  be 
made  herein,  permitting  your  petitioner  as  receiver  of  the 
defendant  corporation  to  appear  and  defend  the  suits  that 
have  heretofore,  or  may  hereafter,  be  brought  in  this  state 
against  the  defendant  corporation  to  recover  damages  for 
injuries  to  persons  or  property,  and  that  your  petitioner  be 
given  the  right  and  discretion  to  compromise  and  adjust  and 
settle  any  suits  or  claims  against  the  defendant  corporation 
for  damages  to  persons  or  property,  or  any  claims  arising  in 
the  operation  of  the  road  committed  to  his  charge,  if,  in  the 
judgment  of  his  counsel,  it  is  proper  to  compromise,  adjust, 
and  settle  such  cases  or  claims,  upon  such  terms  as  may  be  ■ 
agreed  upon  between  him  and  the  litigants  or  claimants, 
and  as  in  duty  bound,  he  will  ever  pray,  etc.  S.  M. 

[Verificcrtion.] 


No.  827. 
Order  Appointing  Special  Master  to  Hear  and  Report  Claims. 

[Caption.] 

It  is  now  ordered  by  the  court  that  suits  and  proceedings 
against  the  receivers  herein  upon  any  cause  of  action  or  claim 
against  the  C.  &  D.  Railway  Co,  accruing  prior  to  the  


RECEIVERS -  — ORIGINAL    PROCEEDINGS.  1235 

day  of ,  1 8 — ,  be  brought  only  by  intervening  petition 

filed  in  this  cause ;  also  that  no  process  of  attachment  or 
execution,  or  other  final  process  whatever  be  issued  against 
said  receiver  for  any  act  of  his  in  the  operation  of  the  C.  & 
D.  Railway  Co.  otherwise  than  upon  leave  granted  upon  in- 
tervening petition. 

It  is  further  ordered  that  R.  P.  be,  and  he  hereby  is  ap- 
pointed a  commissioner  of  this  court  for  the  purpose  of  hear- 
ing and  considering  the  above  claims ;  and  also  such  other 
claims  against  the  receiver  herein,  growing  out  of  his  ope- 
ration of  the  road,  as  may  be  brought  before  him  ;  and  that 
the  said  commissioner  have  the  power  to  hear  and  consider 
all  such  claims,  and  that  the  receiver  be  directed  to  appear 
before  the  said  commissioner  upon  short  notice  served  upon 
himself  or  upon  an  agent  authorized  by  him  to  be  served  in 
his  stead,  to  answer  any  claim  filed. with  the  said  commis- 
sioner ;  and  that  said  commissioner  have  the  power  to  take 
testimony  and  report  the  same  with  his  findings  to  this 
court,  and  that  unless  such  claimant  or  receiver  shall  within 
thirty  days  after  the  filing  of  the  said  report  appeal  from  the 
same  to  this  court,  said  report  shall  become  final,  and  the 
receiver  herein  is  hereby  directed  and  authorized  thereupon 
to  pay  out  of  any  moneys  coming  into  his  hands  such 
amount  as  the  commissioner  may  award  on  said  claim. 

It  is  further  directed  that  said  receiver  do  not  in  any  case 
hereafter  appear  to  answer  any  garnishment  against  any  of 
his  employees,  but  that  all  claims  against  said  employees  be 
presented  to  the  said  commissioner  hereinbefore  appointed ; 
and  that  upon  his  notice  of  such  claim  the  said  receiver  shall 
forthwith  notify  said  employee,  and  shall  withhold  from  said 
employee  from  money  otherwise  due  a  sufficient  amount  to 
satisfy  said  claim,  and  that  upon  order  of  said  commissioner 
the  same  shall  be  paid  either  to  the  said  employee  or  to  the 
said  claimant,  as  said  commissioner  may  direct  and  adjudge. 

And  it  is  further  hereby  ordered  that  that  certain  order 
heretofore  entered  herein  on  the dav  of ,  i8 — .  re- 


1236  SUITS   IN   EQUITY. 

quiring,  among  other  things,  that  suits  of  every  kind  against 
the  receiver  be  brought  only  in  the  district  court  of  the  United 
States,  be  and  the  same  is  hereby  rescinded  and  set  aside  from 
and  after  the  entry  of  this  order,  and  that  the  order  shall 
stand  in  lieu  thereof.  J-  S., 

District  Judge. 


No.  828. 

Order  Appointing  Master  to  Hear  and  Report  Claims  (An- 
other Form). 

\_Capiwni\ 

It  having  been  represented  to  the  court  that  claims  are 
arising  in  against  the  receivers  appointed  and  con- 
firmed in  this  case,  growing  out  of  the  operations  of  the  rail- 
way property  in  for   stock   killed,  personal    injuries, 

damages  to  freight,  damages  for  short  delivery,  etc. ;  and  it 
appearing  to  the  court  that  such  claims  will  constantly  arise 
during  the  pendency  of  the  receivership  in  this  case,  and 
that  such  claims  should  be  adjudicated,  settled,  and  paid 
without  requiring  the  parties  interested  to  seek  relief  from 

the  circuit  court  of  the  United  States  in ,  having  original 

jurisdiction : 

It  is  therefore  ordered  by  the  court  that  E.  M.,  Esq.,  be 
and  he  is  hereby  Jtppointed  special  master  in  chancery  for  this 
cause;  and 

It  is  further  ordered  that  all  claims  for  damages  of  every 
kind  that  may  arise  against  the  receivers,  growing  out  of 

their   operation  of  the  C.  &  D.  Railway  in  ,  may  be 

filed  and  presented  to  said  commissioner,  who  shall  examine 
and  report  thereon  in  due  course. 

That  the  special  master  is  directed  to  give  reasonable 
public  notice  of  this  order,  and  is  authorized  to  hold  sessions 
pending  examination  of  claims  at  such  points  as  he  may 
designate. 

He  shall  report  his  conclusions  to  the  court  from  time  to 
time,  and    such   reports  shall  stand    confirmed,   unless    ex- 


RECEIVERS ORIGINAL   PROCEEDINGS.  1237 

cepted  to  within  thirty  days  from  the  filing  thereof,  upon 
proper  order  entered  according  to  the  rules  in  the  chancery 
order  book.  A.  P., 

Dated .  District  Judge. 


No.  829. 

Oath  of  Special  Master. 

[Caption.] 

I,  E.  M.,  having  been  appointed  special  master  in  chancery 
in  the  above  entitled  cause,  do  solemnly  swear  that  I  will 
faithfully  and  impartially  discharge  and  perform  all  the  duties 
incumbent  upon  me  as  such  special  master  in  chancery,  ac- 
cording to  the  best  of  my  skill  and  ability,  agreeably  to  the 
constitution  and  laws  of  the  United  States ;  so  help  me 
God.  E.  M. 

Subscribed  and  sworn  to  before  me  this  day  of , 

as  witness  my  hand  and  official  seal  at  . 

[Seal.]                                                                    C.  H., 
United  States  Commissioner, District  of . 


No.  830. 

Proof  of  Claim  before  Master  by  One  Receiver  Against 
Another.  (1) 

State  of  — ' — , 
County  of ,  ss. 

Before  me,  a  notary  public  in  and  for  said  county  and  state, 
personally  appeared  E.  S..  auditor  for  the  receivers  of  the 
S.  &  R.  Railway  Company,  who,  being  duly  sworn,  says  that 
he  is  the  authorized  representative  of  the  owner  of  the  claims, 
copies  of  which  are  hereto  attached,  and  that  said  claims  are 
correct,  just  and  lawful,  and  the  consideration  therefor  was 
balance  due  on  ticket,  miscellaneous  (or  car  repairs),  and 
mileage  account;  that  no  part  of  same  has  been  paid;  and 


1238  SUITS    IN    EQUITY. 

there  was  no  counterclaim  or  set-offs  against  said  balances,  to 
the  knowledge  of  affiant,  and  that  there  is  justly  due  the  said 
receivers  of  the  S.  &  R.  Railway  Company  thereon    the  sum 

of  $ ,  bearing  interest  at  six  per  cent,  per  annum,  from  the 

dates  of  the  respective  items  of  said  accounts,  to ,  with  in- 
terest, amounts  in  all  to  $ ,  making  the  total  of  principal 

and  interest  due  to  said  receiver,  the  sum  of  $ . 

E.  S. 
Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of '-,  A.  D.  .  J.  M., 


[Seal.]  Notary  Public, County, — . 

[Attach  itemised  statement  of  account.'] 

(i)  A  claim  against  a  receiver  may  be  presented  by  intervening  peti- 
tion to  the  court  or  it  may  be  proved  before  the  master.  When  the 
latter  course  is  taken  it  may  be  done  by  affidavit  or  frequently  by  examin- 
ing a  witness  orally  before  the  master.     See  also  Bates'  Fed.  ILq.,  Sec.  6^0. 


,  No.  831. 

Order  to  Pay  Claims   /Accruing   Prior  to  the  Appointment 
of  the    Receiver. 

[CapUofz.] 

If  is  hereby  ordered  that  the  receiver  herein  be  and  is 
hereby  authorized  to  pay  out  of  any  funds  in  his  hands  and 
applicable  to  the  business  of  the  railway  being  operated  by 
him  under  the  order  of  the  court  herein,  and  all  claims 
accruing  during  the  period  of  six  months  immediately  prior 
to  the  appointment  of  the  receiver  herein,  for  supplies,  ma- 
terials, wages,  salaries,  and  expenses  incurred  by  agents  and 
employees,  traffic  balances  with  other  common  carriers,  injury 
to  or  loss  of  property  of  shippers  in  transit,  and  for  the  use 
of  the  tracks,  terminals,  or  other  facilities  of  other  railways 
used  by  the  C.  &  D.  Railway  Co.  in  the  ordinary  transaction 
of  its  business.  J.  S., 

District  Judge. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1239 

No.  832. 

Petition  for  Order  Limiting  Time  to  Present  Claims,  etc. 

[^Caption  ^ 

The  petition  of  S.  M.  and  H.  C,  receivers  of  the  C.  D. 
Co.,  respectfully  shows  to  the  court : 

That  on  the day  of ,  1893,  by  a  certain  order  or 

decree  of  the  chancellor  of  the  state  of  New  Jersey,  upon  a 
bill  filed  by  J.  W.  against  the  C.  D.  Co.,  a  corporation  duly 
organized  and  existing  under  the  laws  of  the  said  state  of 
New  Jersey,  showing  that  said  corporation  was  insolvent,  and 
was  not  about  to  resume  its  business  in  a  short  time  there- 
after with  safety  to  the  public  and  advantage  to  the  stock- 
holders, your  petitioners  were  duly  appointed  receivers  of  the 
said  company,  with  power  to  receive  or  take  into  their  pos- 
session all  property  of  the  company  of  whatever  nature,  and 
with  other  powers  and  duties  in  said  order  set  forth,  and  that 
they  duly  qualified  and  gave  the  bond  required  by  said 
court  and  entered  into  the  possession  of  the  property  of  said 
corporation  as  such  receivers. 

That  on  the day  of ,  1893,  upon   a  bill   filed   in 

this  court  in  the  above-entitled  suit,  setting  forth  the  insol- 
vency of  said  corporation,  and  the  appointment  of  your  peti- 
tioners as  receivers  by  the  chancellor  of  New  Jersey,  as 
aforesaid,  your  petitioners  were  also  appointed  and  confirmed 
receivers  of  this  court,  of  all  and  singular  the  property  of 
said  company,  with  the  powers  and  dtities  in  said  order  pre- 
scribed ;  and  your  petitioners  duly  qualified  as  such  receivers, 
as  in  said  order  directed,  and  entered  into  the  possession  of 
all  the  property  of  said  corporation,  and  have  since  been  and 
now  are  engaged  in  the  discharge  of  their  duties  as  such  re- 
ceivers, under  the  orders  and  decrees  aforesaid. 

Your  petitioners  show  that  they  have  been  appointed  and  con- 
firmed receivers  of  the  property  of  said  CD. Co. by  the  decrees 
of  the  district  courts  of  the  United  States  in  and  for  the 
district  of [navihig  all  of  the  courts  in  which  pro- 


1240  SUITS    IN    EQUITY. 

ceedings  have  been  had^^  all  of  the  foregoing  appointments 
being  ancillary  to  the  said  receivership  in  the  state  of  New 
Jersey,  the  domicile  of  the  said  corporation. 

Your   petitioners    further  show    that  on   the day  of 

,   1893,  an  order  was  made  by  the  chancellor  of  New 

Jersey,  directing  the  creditors  of  the  said  C.  D.  Co.  to  bring 
in  and  present  to  the  said  receivers,  in  writing,  their  several 
claims  and  demands,  and  to  make  proof  thereof  upon  oath 
to  the  satisfaction  of  the  said  receivers  within  three  months 
from  the  date  of  said  order,  and  to  cause  notice  of  such  order 
to  be  published  and  made  as  therein  provided,  such  publica- 
tion to  be  commenced  and  notices  mailed  within  ten  days 
from  the  entry  of  said  order,  as  by  said  order,  a  copy  of 
•which  is  hereunto  annexed,  marked  "A,"  will  more  fully 
appear. 

That  by  a  further  order  of  the  said  chancellor,  made  the 
day  of ,  1893,  the  time  within  which  the  said  cred- 
itors of  said  corporation  should  bring  in  and  present  to  the 
said  receivers  their  several  claims  and  demands,  and  make 

proof  thereof,  as  provided  in  said  order  of  the day  of 

>   ^^93*  aforesaid,   was    extended    to    the   day    of 

,    1893,  and  the  publication  required  by  said  order  to  be 

made  was  directed  to  be  begun  within  ten  days  from  the  said 

day  of ,  1893,  and  it  was  directed  that  the  mailing 

of  notices  to  creditors  required  by  said  order  might  be  done 

at  any  time  before  the  expiration  of  said  month  of ,  as 

by  said  order  of  the day  of ,  1893,  a  copy  of  which 

is  hereto  annexed,  marked  "  B,"  will  more  fully  appear.  Pub- 
lication of  the  notices  to  present  claims  has  been  commenced 
by  your  petitioners,  pursuant  to  the  terms  of  said  order  of 

the day  of ,  1893,  ^  copy  of  said  notice  being  hereto 

annexed,  marked  "  C,"  and  copies  thereof  will  be  mailed  to 
all  the  creditors  of  said  corporation  known  to  your  petition- 
ers during  the  present  month,  as  in  said  order  directed. 

Your  petitioners  therefore  pray  that,  to  conform  the  pro- 
ceedings  in  this  court  to  those  in  the  court  of  chancery  0/ 


RECEIVERS ORIGINAL    PROCEEDINGS.  1241 

Kew  Jersey,  this  court  will  make  an  order  in  terms  similar 
to  those  of  the  chancellor  of  New  Jersey  aforesaid,  limiting 
the  time  within  which  the  creditors  of  said  company  shall 
bring  in  and  present  their  several  claims  and  demands,  and 
directing  notice  of  such  order  to  be  published  in  such  news- 
paper as  this  court  may  direct,  and  that  in  default  of  presen- 
tation of  such  claims  pursuant  to  such  order  and  notice,  the 
said  creditors  be  debarred  from  participating  in  any  dividend 
or  distribution  of  assets  of  said  corporation  which  may  be 
made  by  the  receivers. 

And  your  petitioners  will  ever  pray,  etc.  S.  M., 

Y.  &  Y.,  H.  C, 

Solicitors  for  Receivers.  Receivers. 

[Attach  exhibits  "A,"  "B"  and  "C."] 


No.  833. 

Verification  of  Above  Petition. 


State  of , 

County  of ,  ss. 

S.  !M.  and  H.  C,  the  receivers  of  the  C.  D.  Co.,  and  as 
such  petitioners  in  the  foregoing  petition  named,  being  sev- 
erally duly  sworn,  say  that  the  facts  set  forth  in  the  fore- 
going petition  by  them  subscribed  are  true.  S.  M. 

H.  C. 

Subscribed  and  sworn  to  before  me  this  day  of , 

1893.  J.  N., 

[Seal.]  Notary  Public. 


No.  834. 

Notice  to  Creditors  to  Prove  Claims  Before  the  Master. 

The  District  Court  of  the  United   States   for  the  Dis- 
trict of  . 

The  C.  &  D.  Railroad  Company  et  al. 

vs.  y  In  Equity  No. 

The  A.  B.  Trust  Company 


\ 


1242  SUITS    IN    EQUITY. 

On  the day  of ,  A.  D. ,  the  said  court  made 

an  order  in  substance  that  said  cause  be  referred  to  H.  M., 
as  Master,  to  take  and  state  an  account  of  the  indebtedness  of 
the  receiver  of  said  railroad  company,  and  also  of  the  indebted- 
ness of  the  said  company  itself,  as  to  all  claims  and  demands 
for  materials,  supplies  and  labor  and  other  services  rendered 
to  the  said  receiver,  and  also  to  the  said  railroad  company, 
within  six  months  prior  to  the  appointment  of  the  said  receiv- 
er, and  of  all  traffic  balances  with  other  railroad  companies 
accruing  within  six  months  prior  thereto; 

Ordered,  that,  except  as  hereinbefore  noted,  all  and  any 
accounts  and  demands  for  which  a  preferential  right  may  be 
claimed  or  asserted,  be  produced  and  proved  before  the  said 

Master  on  or  before  the day  of ,  under  penalty  of 

thereafter  being  disallowed,  within  the  discretion  of  the  court. 

Creditors  and  claimants  who  are  specifically  made  parties  to 
the  above  entitled  suit  are  excepted  from  the  operation  of  said 
order  of  said  court. 

Ordered,  that  said  Master  give  published  notice  to  claim- 
ants to  present  their  accounts  and  demands  before  him,  as 
aforesaid,  once  a  week  for  two  successive  weeks  in  one  news- 
paper of  general  circulation  in  ,  and  one  newspaper  of 

general  circulation  in  the  city  of . 

Special  attention  is  called  to  the  shortness  of  the  time  for 
presentation  of  claims  and  to  the  desirability  of  promptness  on 
the  part  of  creditors.  H.  M., 

Master  in  said  cause. 


No.  835. 

Receiver's  Petition  for  Authority  to  Purchase  Rails  and  Ties. 

The  District  Court  of  the  United  States  for  the  Dis- 
trict of . 


RECEIVERS ORIGINAL    PROCEEDINGS.  1243 

The  A.  B.  Trust  Company,  Complainant," 


In  Equity. 


vs. 
The  C.  &  D.   Railway  Company  and  the 
E.   &   F.   Railway  Company. 

The  petition  of  S.  M.  and  H.  C,  receivers  of  the  C.  &  D. 
Railway  Company,  respectfully  shows : 

First.  On  the  lines  of  the  railway  in  the  possession  of  your 
receivers,  there  are  portions  of  the  track,  aggregating  to  many 
miles,  which  are  laid  with  iron  rails,  and  which  are  light  In 
weight,  and  badly  worn  out,  so  that  trains  cannot  be  operated 
with  safety  and  ordinary  speed  over  the  same. 

Sdme  of  the  more  important  points  Where  such  iron  rail 
Is  laid  and  where  the  same  is  peculiarly  dangerous  and  un- 
safe are  the  following:  [^Naming  the  points  as  near  Waco, 
Texas,  twenty-five  (25)  miles;  between  Denton  and  Dallas, 
Texas,  thirty-eight  (38)  miles]. 

Second.  The  main  line  of  the  C.  &  D.  railway  extends 

from  ,  to ,  a  distance  of  about  eight  hundred  and 

thirty-three  miles.  The  total  mileage  of  the  C.  &  D.  railway 
and  the  kind  of  rails  used  is  given  in  an  itemized  form,  at- 
tached hereto,  marked  Exhibits  "A"  and  "  B."  Exhibit 
"  A  "  shows  the  mileage  and  weight  of  rails  south  of  Denison, 
and  Exhibit  "  B  "  that  north  of  Denison. 

Third.  It  would  be  inexpedient  and  not  at  all  advisable,  in 
the  judgment  of  your  receivers,  to  buy  iron  rails  to  replace 
those  which  are  worn  out  or  are  in  a  bad  condition,  as  herein- 
before stated,  but  that  the  best  course  to  pursue  is  to  replace 
those  worn  out  and  useless  rails  with  the  light-weight  steel 
rails,  fifty-two  pounds  and  fifty-six  pounds,  taken  from  the 

line  between and ,  and  to  restore  the  places  between 

and ,  from  which  the  fifty-two  pound  and  fifty-six 

'pound  rails  are  taken,  with  sixty-three  pound  steel  rails. 

Fourth.  Your  receivers  have  made  a  careful  investigation 
and  believe  that  the  best  interests  of  the  railway  in  their  pos- 
session require  that  instead  of  buying  iron  rails  they  should 


1244  SUITS    IN    EQUITY. 

buy  steel  rails  of  sixty-three  pound  weight ;  that  the  sixty-three 
pound  rail  is  that  being  generally  put  in  at  the  present  time 
by  all  good  railroads.  Railroads  now  in  operation  are  put- 
ting sixty-three  pound  rails  into  their  main  lines.  If  per- 
mitted to  buy  sixty-three  pound  steel  rails,  your  receivers  can 
take  the  fifty-two  pound  and  fifty-six  pound  rails  from  its 

main  line  between ,  and ,  and  use  them  in  putting  the 

railroad  at  the  points  hereinbefore  referred  to  in  a  safe  con- 
dition and  then  put  the  sixty-three  pound  rails  into  the  main 
line. 

Fifth.  In  order  to  put  the  lines  of  railway  in  charge  of  your 
receivers  in  proper  condition  it  will  be  necessary  to  have  them 
purchase  about  fifteen  thousand  tons  of  steel  rails  of  sixty- 
three  pounds  weight,  and  all  angle  bars,  bolts  and  spikes  for 
properly  laying  the  same,  so  that  the  same  may  be  delivered  in 
time  to  be  laid  during  the  next  year,  and  that  about  two 
(2,000)  thousand  tons  of  said  rails  should  be  delivered  during 
the  present  month,  three  (3,000)   thousand  tons  during  the 

month  of  January,  ,  and  one  (1,000)  thousand  tons  on 

each  succeeding  month  until  wholly  delivered. 

Sixth.  The  receivers  are  advised  that  the  present  is  a  favor- 
able time  to  purchase  steel  rails ;  that  it  is  necessary,  in  order  to 
have  the  steel  rails  when  needed,  that  the  contracts  therefor 
should  be  made  in  advance. 

Seventh.  Your  receivers  further  show  that  in  order  to  place 
the  lines  of  railway  in  their  charge  in  proper  repair,  and  to 
maintain  the  same,  it  will  be  necessary  to  purchase  ties,  and 
that  such  ties  should  be  contracted  for  at  as  early  a  date  as 
possible. 

Wherefore,  your  petitioners  ask  an  order  authorizing  them 
to  purchase  fifteen  thousand  tons  of  sixty-three  pound  sted 
rails,  and  ties  in  sufficient  number  to  keep  and  maintam  the 
road  in  proper  repair.  X.  &  X., 

Solicitors  for  the  Receivers. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1245 


State  of , 

County  of ,  ss. 

We,  S.  M.  and  H.  C,  receivers  of  tlie  C.  &  D.  Railway 
Company,  have  heard  read  the  foregoing  petition,  and  the 
facts  therein  stated  are  true,  as  we  verily  believe. 

S.  M. 
H.  C. 

Subscribed  and  sworn  to  before  me  this day  of , 

A.  D. .  P.  H., 

[Seal.]  Notary  Public. 


No.  836. 

Order  Authorizing  Receivers  to  Purchase  Material,  etc. 

In  the  District  Court  of  the  United  States  for  the Dis- 
trict of . 

The    A.    B.    Trust    Company 

vs. 
The  C.   &  D.    Railway  Com- 
pany et  al. 
On  application  of  the  receivers  heretofore  appointed  in  this 
case,  it  is  ordered  that  they  be  authorized  to  purchase  the 
material  and  contract  for  the  completion  of  fifteen  miles  of 

road  from  to ,  in  ,  and  that  if  necessary  they 

borrow  money  for  the  carrying  out  of  this  contract  on  the 
credit  of  the  property  m  their  possession.  W.  T., 

Dated .  District  Judge. 


No.  837. 
Order  Authorizing  Receiver  to  Pay  Master's  Fees. 

The  District  Court  of  the  United  States  for  the  Dis- 
trict of . 

The    A.    B.    Trust    Company 

vs. 
The  C.   &  D.    Railway  Com- 
pany ct  al. 

The  petition  of  E.  E.,  of  the  city  of ,  for  the  pa3mient 

by  the  receivers  herein  of  the  sum  of dollars  for  moneys 


1246  SUITS   IN    EQUITY. 

advanced  by  him  to  pay  the  fees  of  Samuel  A.  Blatchford. 
Esq.,  the  master  in  the  suit  of  M.  B.  against  the  C.  &  D. 
Railway  Company,  in  the  circuit  court  of  the  United  States 

for  the district  of ,  as  is  more  fully  set  out  in  the 

said  petition,  coming  on  to  be  heard,  and  the  court  being  fully 
advised,  now,  on  motion  of  R.  X.,  Esq.,  of  counsel  for  the 
said  E.  E.,  it  is — 

Ordered,  that  the  receivers  herein  be  and  they  are  hereby 

directed   to  pay  unto  the  said   E.  E.  the  said  sum  of  

dollars  in  full  of  his  advances  for  master's  fees,  as  in  the 
said  petition  is  fully  set  forth. 

Dated . 


No.  838. 

Petition  of  S.  M.,  Receiver,  for  Authority  to  Borrow  $150,000 
on  Receiver's  Certificates. 

The  District   Court  of  the  United   States,  District  of 


The  A.  B.   Trust  Company,   Trustee,  "\  ^  . 

vs.  V  j^     ' 

The  C.  &  D.  Railway  Company.       ) 

To  the  Judge  of  the  District  Court  of  the  United  States  for 
the District  of : 

S.  M.,  receiver,  shows  to  the  court  that  he  is  indebted  as 
receiver  to  sundry  persons  and  corporations  in  the  sum  of 
$150,000  on  account  of  materials  and  supplies  furnished  to 
him  and  services  rendered  to  him  and  traffic  balances  to  other 
railroads  due  from  him.  Said  indebtedness  was  incurred  by 
your  petitioner  in  operating  said  C.  &  D.  railroad  as  receiver, 
in  pursuance  of  the  orders  of  this  court,  in  the  regular  course 
of  the  business  of  said  operation  and  was  necessary  to  said 
operation. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1247 

There  is  due  your  petitioner,  as  receiver,  from  the  T.  Com- 
pany, a  corporation  organized  under  the  laws  of  the  state  of 

,  heretofore  owning  and  operating  mines  along  the  line 

of  said  railroad,  and  the  principal  shipper  over  said  railroad, 

the  sum  of  $ ,  on  account  of  freight  due  to  your  petitioner 

from  said  the  T.  Company.     On  or  about day  of , 

said  the  T.  Company,  being  insolvent,  was  placed  in  the  hands 
of  a  receiver  by  the  order  of  this  court.  Your  petitioner  is 
therefore  unable  to  collect  any  of  said  indebtedness  due  to 
him  from  said  company. 

There  is  also  due  to  your  petitioner  from  sundry  railroad 
companies,  on  account  of  traffic  balances  accruing  since  your 

petitioner's  appointment  as  receiver,  the  sum  of  $ ,  which 

said  companies  refuse  to  pay,  and  which  your  petitioner  is 
unable  to  collect,  because  said  C.  &  D.  Railroad  Company  is 
indebted  to  said  railroad  companies  on  account  of  traffic  bal- 
ances accruing  prior  to  the  appointment  of  your  petitioner  as 
receiver,  and  said  railroad  companies  insist  upon  setting  off 
said  indebtedness  of  said  C.  &  D.  Railroad  Company  against 
their  indebtedness  to  your  petitioner,  as  receiver. 

By  reason  of  said  insolvency  and  failure  of  the  T.  Com- 
pany and  said  refusal  of  said  railroad  companies  to  pay  traf- 
fic balances  due  to  your  petitioner,  your  petitioner  is  without 
funds  to  pay  said  indebtedness  of  $150,000  due  from  him  as 
receiver. 

Your  petitioner  therefore  prays   for   authority  to  borrow 
$150,000,   as   receiver,   upon  receiver's  certificates. 
R.  X.,  S.  M., 

Counsel.  Receiver. 


1248  SUITS   IN    EQUITY. 

No.  839. 

Order  Authorizing  Receiver  to  Issue  Receiver's  Certificates  to 
the for  $150,000. 

\_Caption.^ 

It  appearing  to  the  court  that  the  receiver  has  not  funds 
on  hand  with  which  -to  pay  the  Lane  Machine  Company  the 
sum  of  $150,000  which  the  court,  by  its  order  entered  herein 
,  authorized  the  receiver  to  pay  to  said  company  in  set- 
tlement of  its  claim  for  the  Thornburgh  unloader  at ,  and 

that  it  is  necessary  to  make  said  payment  in  order  to  secure  the 
benefit  of  said  settlement,  and  that  said  machine  is  necessary 
for  the  operation  of  said  railroad,  and  that  said  Lane  Machine 
Company  is  willing  to  accept  receiver's  certificates   for  said 

amount  bearing  interest  at  five  per  cent,  per  annum  from , 

and  maturing  not  later  than . 

It  is  now  on  this day  of ,  ordered,  adjudged  and 

decreed  by  the  court  that  S.  M.,  receiver,  be  and  he  is  hereby 
authorized  to  issue  and  deliver  his  three  certificates,  as  receiv- 
er, to  said  Lane  Machine  Co.,  for  the  sum  of  $5,000,  each, 
bearing  interest  at  the  rate  of  five  per  cent,  per  annum  from 
,  and  maturing  on  or  before  ,  the  same  to  be  re- 
ceived and  accepted  by  said  Lane  Machine  Company  in  pay- 
ment of  said  machine  and  in  full  settlement  of  the  claim  cov- 
ered by  said  order  of  the  court  entered  herein  .     Said 

certificates  shall  be  a  first  lien  on  all  and  singular  the  prop- 
erty of  the  defendant.  The  C.  &  D.  Railroad  Company,  now 
by  it  owned  or  hereafter  acquired,  and  upon  the  income  there- 
of, and  shall  be  prior  in  right  to  the  mortgage  of  the  A.  B. 
Trust  Company  and  to  the  mortgage  of  the  E.  &  F.  Trust  Co., 
trustee,  provided  that  nothing  in  this  order  shall  in  any  wise 
prejudice  or  affect  the  lien,  if  any  exists,  of  the  receiver's  cer- 
tificates issued  and  now  outstanding  under  and  in  pursuance 

of  the  orders  of  the  Court  of  Common  Pleas  of county, 

,  in  case  No.  6491,  on  the  docket  of  that  court,  of  the 


RECEIVERS ORIGINAL    PROCEEDINGS,  1249 

E.  &  F.  Trust  Company  against  the  C.  &  D.  Railway  Company ; 
and  provided  further  that  the  lien  of  the  certificates  issued 
under  this  order  shall  be  of  equal  rank  with  the  lien  of  the 

certificates  to  the  amount  of  $ issued  under  the  orders  of 

this  court,  entered  herein  ,  and  ,  and  with  the  lien 

of  the  certificates  to  the  amount  of  $ issued  or  to  be 

issued  under  the  order  of  this  court  entered  herein  on ,  and 

with  the  lien  of  the  certificates  to  the  amount  of  $ issued  or 

to  be  issued  under  the  order  of  this  court  entered  herein  on 

,  and  that  none  of  the  certificates  issued  under  this  order, 

or  under  said  orders  of ,  and ,  shall  have  any  priority 

the  one  over  the  other. 

The  certificates  under  this  order  shall  be  countersigned  by 
the  clerk  of  the  court  and  registered  by  him  in  a  record  to  be 
kept  by  him  for  that  purpose,  and  shall  be  in  the  following 
torm :     [Here  set  out  form  as  in  next  form  below.^ 


No.  840. 

A  Receiver's  Certificate. 

The  C.  &  D.  Railroad  Company. 
Receiver's  Certificate  of  Indebtedness. 

This  is  to  certify  that  S.  M..  receiver  of  the  C.  &  D.  rail- 
road, as  such  receiver,  and  not  individually,  is  indebted  unto 
the  Lane  Machine  Company,  or  the  bearer  hereof,  in  the  sum 

of  ($ )    dollars  payable  on  or  before  ,   with 

interest  from  ,  at  the  rate  of  five  per  cent,  per  annum, 

out  of  the  earnings  of  said  C.  &  D,  railroad,  first  after 
such  payments  as  may  be  necessary  for  the  operation  of  said 
railroad,  or  out  of  the  proceeds  of  the  sale  of  the  said  rail- 
road property,  in  the  event  the  same  is  sold,  before  the  bonds 
secured  by  the  mortgages  hereinafter  mentioned  are  paid. 

This  certificate  is  one  of  three  of  $ each  issued  under 

the  authority  of  an  order  of  the  district  court  of  the  United 


1250  SUITS    IX    EQUITY. 

States  for  the  District  of  ,  division,   made 

,  in  a  cause  pending  in  said  court,  wherein  the  A.  B.  Trust 

Company,  trustee,  is  complainant,  and  said  the  C.  &  D.  Rail- 
road Company  is  defendant. 

The  said  three  certificates  are  by  the  terms  of  said  order  a 
first  lien  on  all  and  singular  the  property  of  said  the  C.  &  D. 
Railroad  Company,  owned  by  it  at  the  date  of  said  order, 
or  thereafter  acquired  by  it,  and  upon  the  income  thereof,  and 
are  prior  in  right  to  the  mortgages  of  the  said  railroad  com- 
pany to  said  the  E.  F.  Trust  Company  and  the  A.  &  B.  Trust 

Company  of  the  city  of  ;  provided,  however,  that  the 

said  certificates  shall  not  in  any  wise  prejudice  or  affect  any 
lien  of  receiver's  certificates  issued  and  now  outstanding  un- 
der and  in  pursuance  of  the  orders  of  the  Court  of  Common 

Pleas  of county,  ,  in  suit  No.  ,  of  said  E.  F. 

Trust  Company  of  the  city  of against  the  C.  &  D.  Rail- 
way Company,  and  provided  further,  that  the  lien  of  the  cer- 
tificates issued  under  said  order  of ,  shall  be  of  equal  rank 

with  the  lien  of  the  certificates  to  the  amount  of  $ which 

have  been  issued  by  said  S.  M.,  receiver,  under  the  orders 
of  said  District  Court  of  the  United  States  for  the  dis- 
trict of , division,  entered  in  said  cause  on ,  and 

,  and  with  the  lien  of  the  certificates  to  the  amount  of 

$ issued  or  to  be  issued  by  said  S.  M.,  receiver,  under  Ihe 

order  of  said  court  entered  in  said  cause  on  ,  and  with 

the   lien  of  the  certificates  to  the  amount  of  $ issued 

or  to  be  issued  by  said  S.  M.,  receiver,  under  the  order  of 

said  court  entered  in  said  cause  on ,  and  that  none  of  the 

certificates  issued  under  said  order  of  ,   or  under  said 

orders  of ,  and ,  shall  have  any  priority  the  one  over 

the  other. 

This  certificate  shall  not  become  obligatory  until  counter- 
signed by  the  clerk  of  the  District  Court  of  the  United  States 
for  the district  of  .  division,  and  certified  by 


RECEIVERS ORIGINAL   PROCEEDINGS.  1251 

him  that  the  same  has  been  duly  issued  under  the  order  of  t'ne 
court. 

This  is  to  certify  that  the  foregoing  certificate  has  been 
duly  issued  by  S.  M..  under  the  order  of  the  District  Court 
of  the  United  States  for  the district  of ,  divi- 
sion, therein  mentioned. 

Witness  the  seal  of  said  court  and  the  signature  of  the 
clerk  thereof,  this day  of . 

[Seal.]  B.  R., 

Clerk. 

In  witness  whereof,  the  said  S.  M.,  as  receiver  aforesaid, 

but  not  individually,  has  signed  this  certificate  this day 

of .  S.  M., 

Receiver. 


No.  841. 

Order  Allowing  Receiver  to  Renew  Notes. 

[Caption-I 

It  appearing  to  the  court  that  S.  M.,  receiver,  has  not 
funds  with  which  to  pay  at  their  maturity  the  notes  to  the 

amount  of  $ which  he  has  issued  pursuant  to  the  order 

of  this  court  entered  on  ,  and  that  the  holders  of  said. 

notes  are  willing  to  extend  or  renew  the  same  for  six  months, 

it  is  now,  on  this day  of ,  ordered  that  said  S.  M., 

receiver,  be  authorized  to  renew  or  extend  said  notes  for  a 
period  not  exceeding  six  months  from  the  date  of  their  matur- 
ity, with  interest  at  a  rate  not  exceeding  six  per  cent,  per 
annum. 

And  it  is  further  ordered  that  said  S.  M.,  receiver,  shall  re- 
reserve  and  set  aside  $ of  the  certifitcates  authorized  to 

be  issued  by  the  order  of  this  court  entered  on ,  and  that 

he  shall  not  issue  or  use  said  certificates  unless  or  until  the 
notes  authorized  by  this  order  to  be  extended  or  renewed  are 
paid,  and  only  to  the  extent  and  in  the  proportion  that  the 
same  are  paid. 


1252  SUITS    IN    EQUITY. 

No.  842. 

Petition  by  a  Receiver  of  a  Lessee  Railroad  Company  to  Re- 
place Bridges  under  Terms  of  Lease  (i). 

[Caption.'] 

Your   petitioner   having   heretofore,    on   the  day   of 

,  been  appointed  by  this  honorable  court  receiver  of  the 

property  of  the  C.  &  D.  Railway  Company,  the  defendant 
herein,  with  direction  to  operate  the  same  as  a  common  car- 
rier, and  having  entered  upon  his  duties  as  such  receiver  and 
continued  in  the  exercise  of  same  to  the  present  date,  respect- 
fully represents  to  the  court :  That  after  a  careful  examina- 
tion and  inspection  thereof  recently  made  by  G.  B.,  a  civil 
engineer  of  high  attainment  and  authority  in  such  matters, 
who  was  also  in  charge  of  the  construction  of  said  railway, 
including  the  bridges,  and  who  is  familiar  therewith,  and  after 
a  like  examination,  made  by  competent  employes  of  your 
receiver,  he  finds  that : 

The  following  expenditures  for  bridge  replacement  are  nec- 
essary to  be  incurred  in  order  to  properly  and  safely  continue 
the  operation  of  said  railway  in  the  business  of  a  common 
carrier:     [Here  state  the  bridges  desired  to  be  replaced  as: 
I.'  Two  spans,  187  feet  long,  of  the  north  ap- 
proach of  the  bridge  of  said  railway  at  Cin- 
cinnati, over  the  Ohio  river,  at  an  estimat- 
ed cost  of $35,ocxD 

2.  Three  spans  of  the  railway  bridge  over  the 
Ohio  river  at  Cincinnati,  in  length,  112  to 
120   feet,   to  cost,   as   per   contract   already 

let   $17,350] 

The  ownership  of  the  defendant  railway  company  in  the 
said  railway  is  that  of  lessee  under  and  by  virtue  of  a  cer- 
tain lease  made  the day  of ,  by  the  trustees  of  the 

Cincinnati  Southern  Railway  to  the  defendant  herein,  for 
the  term  of  twenty-five  years  then  next  ensuing,  at  an  annual 


RECEIVERS ORIGINAL    PROCEEDINGS.  1253 

rental  of  $ ,  for  the  first  period  of  five  years,  $ for 

the  second  period  of  five  years,  $ for  the  third  period  of 

five  years,  $ for  the  fourth  period  of  five  years,  and  $ 

for  the  fifth  period  of  five  years,  in  addition  to  the  sum  of 

$ ,  paid  by  him  yearly  to  the  trustees  of  said  railway  in 

accordance  with  requirements  of  said  lease. 

Clause  five  of  said  lease  contains  the  obligations  of  the 
defendant,  as  lessee,  concerning  repairs,  replacements  and  re- 
newals, wherein  the  defendant  company  agrees  that  it  would; 

"  Whenever  needed,  do  all  repairs,  replacements  and  renew- 
all  on  said  line  of  railway,"  and  that  it  would  "  maintain,  pre- 
serve and  keep  the  same  and  every  part  thereof  in  thorough 
repair,  working  order  and  condition,"  and  that  it  would  at  the 
end  of  said  lease  "re-deliver  and  surrender  the  same  with  all 
conditions  to  and  improvements  thereon,  in  such  thorough 
repair,  working  order  and  condition,  in  which  they  are  re- 
quired to  be  put  and  kept  by  this  lease,  and  such  repairs  and 
renewals  to  be  made  by  the  party  of  the  second  part,  shall 
include,  among  other  things,  the  arching  with  brick  or  stone 
of  the  tunnels  now  lined  with  timber,  or  untimbered  tunnels 
which  require  arching;  the  filling  of  all  wooden  trestle  work 
required  to  be  filled,  and  replacing  all  other  wooden  works 
and  bridges  with  permanent  structures  of  stone  and  iron." 

Your  petitioner  says  that  such  bridge  replacements  are 
made  necessary  by  reason  of  defective  workmanship  in  the 
original  construction  of  said  bridges,  as  well  as  by  the  fact 
that  said  bridges  when  built,  were  designed  to  carry  loads 
very  much  less  than  the  weight  of  loaded  cars  now  necessarily 
in  use  on  said  roads  and  generally  throughout  the  United 
States. 

Your  petitioner  asks  the  authority  of  the  court  for  mak- 
ing such  expenditures,  and  that  it  instruct  him  whether  the 
same  shall  be  charged  by  him  to  the  said  lessee,  the  defendant 
herein,  or  to  the  city  of  Cincinnati,  by  deducting  same  from 
the  rent  aforesaid  reserved  in  said  lease  in  favor  of  the  city 


1254  SUITS    IN    EQUITY. 

of  Cincinnati,  which  your  petitioner  as  such  receiver  aforesaid 
is  paying,  as  in  the  former  event  it  may  become  necessary  that 
your  petitioner  borrow  the  money  by  means  of  certificates  to 
pay  for  said  expenditures,  and  he  will  ever  pray,  etc. 

State  of , 

County  of ,  ss. 

S.  M..  being  by  me  first  duly  sworn,  says  that  allegation 
of  the  foregoing  petition  is  true  as  he  verily  believes. 

S.  M. 

Sworn  to  before  me  and  subscribed  in  my  presence  this 
day  of ,  A.  D.  .  S.  E., 

[Seal.']  Notary  Public  for County, 


^i)  Taken  from  the  record  in  the  case  of  Thomas  vs.  C.  N.  O.  &  T.  P. 
Ry.,  pending  in  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 


No.  843. 

Petition  of  Receiver  to  Pay  for  Electric  Block  System. 

[Caption.li 

E.  F.,  hereinbefore  appointed  receiver  of  the  railway  and 
property  of  the  defendant,  respectfully  represents  to  this  hon- 
orable court  that  the  defendant  company  had,  before  the  ap- 
pointment of  a  receiver,  purchased  certain  equipment,  pay- 
ments for  which  were  to  be  made  in  installments;  that  the 
company  had  paid  many  of  such  installments,  and  that  it  is 
necessary  to  pay  the  remaining  ones  in  order  to  save  those 
already  made,  and  secure  the  property  free  of  the  lien  for 
balance  due,  the  present  value  of  the  property  being  in  excess 
of  the  undue  payments. 

He  further  respectfully  represents  that  during  the  past  two 
years  said  company  has  been  carrying  out  a  system  of  electric 
block  signals  in  the  mountain  region  over  which  the  road 
operated  by  the  company  passes,  and  about  $23,000  has  al- 
ready been  expended  thereon,  and  that  prior  to  his  appoint- 


RECEIVERS ORIGINAL    PROCEEDINGS.  1255 

ment,  the  company  had  negotiated  for  twenty- four  additional 
block  signals  for  said  region,  which  were  necessary  to  continue 
said  system,  at  a  total  expense  of  about  ten  thousand  dollars; 
that  said  region  is  uninhabited,  and  it  would  be  very  much 
more  expensive  to  use  an  ordinary  block  system  than  such 
self-operating  electric  one;  that  the  use  of  said  block  system 
has  since  its  adoption  saved  to  the  company  a  very  large  sum 
of  money,  over  and  above  its  cost,  and  that  the  remaining 
number  aforesaid  will,  your  petitioner  believes,  result  in  equal 
benefit. 

Your  petitioner  therefore  respectfully  asks  the  authority 
of  the  court  to  complete  such  payments  on  equipment  and  to 
purchase  and  put  in  operation  the  remaining  block  signals  as 
aforesaid.  E.  F., 

By  R.  X, 
Attorney  for  Receiver. 

State  of  , 

County,   ss. 


E.  F.,  receiver,  being  duly  sworn,  deposes  and  says  that 
the  averments  of  the  foregoing  petition  are  true  as  he  verily 
believes.  E.  F. 

Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of ,  A.  D. .  J.  N., 

[Seal.J  Notary  Public,  — —  County,  . 


No.  844. 

Order  Directing  Filing  of  Receiver's  Petition  and  Service  of 
Copy  of  this  Order  on  E.  A.  Ferguson,  President  Board  of 
Trustees  Cincinnati  Southern  Railway  (i). 

lCaption.'\ 

The  receiver  heretofore  appointed  herein  having  presented 
^o  the  court  a  petition  to  be  filed  in  this  cause,  showing  the 
necessity   for   expenditures   for  bridge   replacements   on  the 


12!  6  SUITS    IN    EQUITY. 

railway  of  the  Cincinnati,  New  Orleans  and  Texas  Pacific 
Railway  Company,  to  the  amount  of  one  hundred  and  twelve 
thousand,  one  hundred  and  three  ($112,103)  dollars,  by  rea- 
son of  the  alleged  defective  workmanship  in  the  original  con- 
struction of  said  bridges  as  well  as  by  reason  of  the  fact  that 
said  bridges  were  designed,  when  built,  to  carry  loads  very 
much  less  than  the  weight  of  loaded  cars  now  necessary  for 
use  on  the  said  railway,  and  generally  throughout  the  United 
States,  and  asking  the  authority  of  the  court  for  making  said 
expenditures  and  for  instructions  whether  the  same  should 
be  charged  to  the  said  lessee  of  the  Cincinnati,  New  Orleans 
and  Texas  Pacific  Railway  Company  or  to  the  city  of  Cin- 
cinnati, by  deducting  same  from  the  rent  aforesaid  reserved 
in  said  lease,  in  favor  of  said  city,  which  said  receiver  is  pay- 
ing. 

And  the  court  having  ordered  said  receiver  to  file  said  pe- 
tition, which  has  been  accordingly  filed,  does  now  on  its  own 
motion,  direct  that  a  copy  of  said  petition  and  of  this  order  be 
served  upon  the  trustees  of  the  Cincinnati  Southern  railroad, 
requiring  them  to  show  cause,  if  any  they  have,  within  twenty 
days,  why  the  prayer  of  said  petition  should  not  be  granted 
and  why  the  cost  of  such  expenditures  should  not  be  charged 
tQ  the  city  of  Cincinnati,  by  deducting  the  same  from  the  rent 
which  said  receiver  is  paying  for  the  use  of  said  railroad. 
And  that  the  service  of  this  order  and  of  the  said  petition  be 
made  by  delivering  a  copy  of  the  same  to  E.  A.  Ferguson, 
Esq.,  president  of  said  board. 

(l)  Copied  from  the  record  in  the  case  of  Thomas  vs.  C.  N.  O,  &  T.  P. 
Ry.,  pending  in  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 


RECEIVERS ORTCTXAL    PROCEEDINGS.  1257 

No.  845. 

Order  Directing  Replacements  of  Bridges  to  be  Made  and 
Reserving  Questions  as  to  Party  to  be  Charged  There- 
with (i). 

{_C  option.'] 

The  receiver  heretofore  appointed  herein  having  on  the 
6th  day  of  March,  1896,  filed  in  this  cause  a  petition  showing 
necessity  for  expenditures  for  bridge  replacements  on  the 
railway  of  the  Cincinnati,  New  Orleans  and  Texas  Pacific 
Railway  Company,  as  specified  and  set  forth  in  said  petition, 
not  exceeding  the  amount  of  one  hundred  and  twelve  thou- 
sand one  hundred  and  three  ($112,103)  dollars,  and  the  court 
being  satisfied  that  there  is  immediate  necessity  for  said  re- 
placements of  said  bridges, 

It  is  now  ordered  that  said  receiver  forthwith  have  said 
replacements  of  said  bridges  made,  at  an  expenditure  not  ex- 
ceeding the  amount  hereinbefore  named,  other  questions  sug- 
gested in  said  petition,  by  request  for  instructions  concern- 
ing the  party  to  be  charged  with  said  expenditures  are  de- 
ferred for  future  consideration,  without  prejudice. 

(i)  Copied  from  record  in  Thomas  vs.  C.  N.  O.  &  T.  P.  Ry.,  in  the 
Circuit  Court  of  the  United  States  for  the  Southern  District  of  Ohio. 


No.  846. 

Entry  Granting  Motion  to  Vacate  Order  of  March  11,  1896, 
and  to  Discharge  Rule  Issued  in  Pursuance  Thereof  (x). 

\_Caption.'] 

This  cause  coming  on  further  to  be  heard  this  day  on  the 
motion  of  the  trustees  of  the  Cincinnati  Southern  railway,  to 
set  aside  that  certain  order  hereinbefore  made  on  the  nth  day 
of  March,  1896,  whereby  they  are  required  to  show  cause 
why  the  expenditures  necessary  to  replace  certain  spans  of 


■^258  SUITS    IN    EQUITY. 

the  Ohio  river  bridge  and  Cumberland  river  bridge  of  the 
Cincinnati  Southern  railway  be  not  charged  to  the  city  of  Cin- 
cinnati, by  deducting  the  same  from  the  rent  paid  to  it  by 
said  receiver  for  the  use  of  said  railway,  or  otherwise,  the 
said  trustees  of  the  Cincinnati  Southern  railway  having  ap- 
peared by  W.  T.  Porter,  their  solicitor,  and  filed  their  motion 
to  vacate  said  order  of  March  ii,  1896,  and  to  discharge  the 
rule  made  upon  them  in  pursuance  thereof,  and  having  ap- 
peared for  the  purpose  of  said  motion  only,  and  the  court  be- 
ing of  opinion  that  the  proper  m.ode,  if  any,  in  this  court, 
to  raise  the  question  intended  to  be  presented  by  said  rule, 
would  be  by  ancillary  bill  or  by  separate  and  independent  bill 
in  equity,  and  it  is  now  ordered  that  the  motion  of  said  trus- 
tees to  set  aside  said  rule  be,  and  the  same  is,  hereby  granted. 
Said  rule  is  accordingly  set  aside  and  vacated  and  discharged, 
and  this  order  is  made  without  prejudice  to  the  rights  of  the 
parties  on  the  merits  of  the  question  involved,  as  the  same 
may  be  hereafter  presented. 

(i)  Taken  from  record  in  Thomas  vs.  C.  N.  O.  &  T.  P.  Ry.,  in  the  Cir- 
cuit Court  of  the  United  States  for  the  Southern  District  of  Ohio. 


No.  847. 
Petition  for  Direction  to  Receivers. 

The  District   Court   of  the  United    States,   District  of 


Union  Trust  Company  of  New  York 

vs. 

The  C.  &  D.  Railway  Company  et  al. 

The  A.   B.   Trust   Company 

vs. 
The  C.  &  D.  Railway  Company  et  al. 

To   the  Honorable   the   Judge  of  the  District   Court   of  the 

United  States  for  the District  of . 

The  petition  of  the  Union  Trust  Company  of  New  York 
respectfully  shows  to  this  court : 


RECEIVERS ORIGINAL    PROCEEDINGS.  1259 

Petitioner  has  lately  exhibited  in  this  court  its  bill  of  com- 
plaint against  the  C.  &  D.  Railway  Company  et  al.  to  fore- 
close certain  mortgages  therein  described,  and  that  all  and 
singular  the  allegations  in  said  bill  of  complaint  are  true  in 
manner  and  form  as  therein  made. 

Petitioner  shows  that  heretofore  the  A.  B.  Trust  Company, 
complainant  in  the  second  above-entitled  suit,  exhibited  its 
bill  of  complaint  against  said  C.  &  D.  Railway  Company  et  al. 
to  foreclose  a  certain  mortgage  therein  described.  The  copies 
of  said  respective  mortgages  are  annexed  to  said  respective 
bills  of  complaint. 

In  the  suit  of  said  A.  B.  Trust  Company  in  September, 

,  this  court,  on  the  application  of  complainant,  appointed 

Messrs.  S.  M.  and  H.  C,  receivers  of  the  mortgaged  prop- 
erty, and  in  the  suit  wherein  petitioner  is  cojnplainant,  this 

court,  in  March,  ,  appointed  the  same  persons  receivers 

of  the  property  described  in  said  mortgages  to  petitioner. 

Petitioner  refers  to  the  said  bills  of  complaint,  and  to  the 
exhibits  thereto  annexed,  and  to  the  said  orders,  and  makes 
the  same  parts  of  this  petition  the  same  as  if  incorporated 
herein. 

Petitioner  further  shows  that  the  said  mortgages  to  your  pe- 
titioner are  a  lien  on  the  said  property  therein  described  prior 
to  the  lien  of  the  mortgages  to  said  A.  B.  Trust  Company,  and 
that  the  mortgages  to  said  A.  B.  Trust  Company  constitute  a 
lien  on  the  property  described  in  the  mortgages  to  your  pe- 
titioner junior  and  subject  to  the  lien  thereon  of  said  mort- 
gages to  your  petitioner.  That  the  mortgages  to  said  A.  B. 
Trust  Company  are  also  a  lien  on  property  therein  described, 
and  which  is  not  described  in  the  mortgages  to  your  petitioner, 
and  on  which  the  mortgages  to  petitioner  are  not  a  lien. 

By  each  of  the  orders  entered,  respectively,  one  in  each 
of  above-entitled  suits,  said  receivers  were  directed  to  keep  ac- 
counts of  the  earnings  of  the  separate  properties  described  in 


J 260  SUITS    IN    EQUITY. 

said  respective  mortgages,  to  the  end  that  the  rights  and  in- 
terests of  the  several  parties  therein  might  be  ascertained. 

Petitioner  further  shows  that  it  is  informed  and  beUeves 
that  the  part  of  said  property  covered  by  said  mortgages  to 
petitioner  is  vakiable  and  productive  of  net  income  over  oper- 
ating expenses,  and  that  the  part  of  said  property  covered  only 
by  the  mortgages  to  said  A.  B.  Trust  Company  is  of  very 
much  less  value  and  is  productive  of  very  little  net  income  over 
and  above  the  operating  expenses,  and  is  in  bad  repair  and 
needs  the  expenditure  of  large  sums  for  repairs  and  replace- 
ments. 

That  since  the  possession  of  said  receivers  they  have  filed  in 
this  court  their  accounts  for  the  first  two  months  of  their- 
operation  of  said  property,  to  wit,  for  November  and  De- 
cember,   .  ^ 

Said  receivers  in  said  accounts  have  divided  the  said  prop- 
erty into  seven  divisions,  and  state  the  earnings  and  expenses 
of  each. 

The  property  in  the  first  four  of  said  divisions,  to  wit, 
[naming  them  as  Missouri,  Kansas  and  Texas,  North  Divi- 
sion, Hannibal  and  Central  Missouri,  Tebo  and  Neosho,  Union 
Pacific,  Southern  Branch,]  is  all  covered  by  the  mortgages 
to  petitioner. 

By  the  report  of  said  receivers  the  earnings  for  said  two 
months  of  the  property,  subject  to  petitioner's  mortgage, 
amounted  to  $679,153.76,  and  the  expenses  charged  to  the 
same  amounted  to  $424,409.99,  the  difference,  $234,743.77, 
being  net  earnings.  To  that  sum  the  said  report  shows  that 
$6,666.66,  rental  of  Osage  division,  should  be  added,  making 
net  earnings  of  $261,410.43. 

Deducting  from  that  sum  the  taxes  for  the  Missouri  and 
Kansas  portions  of  the  property,  to  wit,  $68,286.64,  leaves 
$193,123.79  as  the  net  earnings  of  the  part  of  the  property 
covered  by  petitioner's  mortgages. 


RECEIVERS ORIGINAL    PROCEEDINGS.  ^261 

The  said  report  shows  that  the  earnings  of  the  property  not 
covered  by  petitioner's  mortgages  for  said  two  months  were 
$452,820.34,  and  the  expenses  charged  to  the  same  amounted 
to  $370,164.74,  and  the  difference,  $82,655.60,  constitute  the 
net  earnings.  * 

Said  report,  however,  shows  that  the  taxes  on  the  Texas 
property  were  $50,128.33,  which,  when  deducted,  leave  the 
net  earnings  of  the  property  not  covered  by  petitioner's  mort- 
gage $32,527.27,  as  against  net  earnings  of  property  covered 
by  petitioner's  mortgage,  $193,123.79. 

These  two  items  of  $193,123.79,  for  the  property  covered 
by  petitioner's  mortgages,  and  $32,527.27,  for  the  property 
not  covered  by  petitioner's  mortgages,  make  the  total  of  net 
income  of  $225,651.06,  as  stated  in  said  receivers'  accounts 
to  December  31,  1888. 

The  net  income  of  tke  property  not  covered  by  petitioner's 
mortgage  is  therefore  but  little  more  than  one-seventh,  and 
that  of  the  property  covered  by  petitioner's  mortgage  little 
less  than  six-sevenths,  of  the  total  income  of  the  whole  prop- 
erty, the  one-seventh  of  said  net  income  being  $32,235.86  4-7. 

Petitioner  is  informed  and  believes  that  the  receivers  have 
spent  and  are  spending  a  large  amount  of  the  net  income  from 
the  property  covered,  by  the  mortgages  to  petitioner  on  the 
property  not  covered  by  said  mortgages,  to  the  injury  of  the 
petitioner  and  petitioner's  cestui  que  trust,  holders  of  bonds 
secured  by  said  mortgages  to  petitioner. 

Petitioner  is  advised  that  all  and  singular  the  net  income  of 
the  property  covered  by  petitioner's  mortgages  should  be  ap- 
plied, first,  to  such  repairs  and  replacements  as  may  be  nec- 
essary to  preserve  and  protect  the  property  covered  thereby 
pending  the  said  suit  of  petitioner,  and  thereafter  to  the  pay- 
ment of  the  interest  on  the  bonds  secured  by  said  mortgages 
to  your  petitioner,  and  that  so  long  as  any  interest  is  due  and 
unpaid  on  said  bonds  secured  by  said  mortgages  to  your  pe- 
titioner,  none  of  said  net  income   should  be   spent    for  the 


1252  SUITS    IN    EQUITY. 

care  or  improvement  of  property  not  covered  by  said  mort- 
gages to  your  petitioner. 

Petitioner  has  within  the  last  day  or  two,  in  New  York  city, 
been  informed  by  Mr.  H.  C,  one  of  said  receivers,  that  said 
receivers  are  spending  the  income  of  said  property  in  the  re- 
pair and  replacement  of  the  whole  property  wherever  it  may 
be  needed,  without  regard  to  where  it  has  been  earned;  and 
petitioner  is  informed  and  believes  that  much  more  than  the 
share  of  said  net  income  belonging  thereto  and  earned  thereby 
is  being  spent  on  the  property  on  which  petitioner's  mortgage 
is  no  lien. 

Petitioner  is  further  informed  and  believes  that  the  net 
income  of  the  said  respective  portions  of  property  since  the 
date  of  said  report  to  the  present  time  is  in  about  the  same 
proportion  as  is  stated  in  said  report  for  the  time  covered  by 
said  report,  to  wit,  that  the  property  not  covered  by  peti- 
tioner's mortgage  earns  but  about  one-seventh  thereof. 

Petitioner  is  further  informed  and  believes  that  the  ac- 
counts of  said  receivers  are  or  should  be  balanced  monthly, 
and  petitioner  alleges  that  the  receipts  of  copies  of  monthly 
balances  would  greatly  facilitate  petitioner  in  discharging  its 
duties  to  its  cestui  que  trust,  the  holders  of  bonds  secured  by 
said  mortgages. 

Wherefore  petitioner  prays  that  the  said  receivers  may  be 
directed  to  spend  no  part  of  the  income  derived  from  or 
earned  by  the  property  covered  by  the  petitioner's  mortgages 
upon  property  not  covered  by  petitioner's  mortgages,  and 
that  all  the  income  derived  from  the  property  covered  by  pe- 
titioner's mortgages  over  and  above  the  operating  expenses 
thereof  be  held  and  reserved  pending  the  suit  for  the  benefit 
of  said  property  and  the  payment  of  the  interest  on  the  bonds 
secured  by  said  mortgages,  and  that  if  said  receivers  do  not 
already  do  so,  they  be  directed  to  have  their  accounts  balanced 
at  least  monthly,  and  that  copies  of  such,  balances,  or  of  state- 
ments of  accounts  made  at  least  monthly,  should  monthly  be 


RECEIVERS ORIGINAL    PROCEEDINGS.  ^263 

furnished  to  petitioner,  and  that  petitioner  may  have  such  oth- 
er or  further  relief  as  may  be  just. 

Union  Trust  Company  of  New  York, 

By  E.  K.,  President, 
X.  &  X., 
Solicitors  for  Petitioner. 
G.  S., 
Of  Counsel. 

State  of , 

County  of ,  ss. 

E.  K.,  of  the  city  of ,  being  duly  sworn,  says  that  he  is 

president  of  the  Union  Trust  Company  of  New  York,  and 
knows  the  contents  of  foregoing  petition,  and  that  the  same  is 
true  to  the  best  of  deponent's  knowledge,  information  and 
belief.  E.  K. 

Subscribed  and  sworn  to  before  me,  March  29,  1889. 
[Seal.}  J.  v., 

Notary  Public,  County. 


No.  848. 
Order  in  re  Petition  for  Direction  to  Receivers. 

[^Caption.l 

And  now  comes  the  Union  Trust  Company  of  New  York, 
by  its  solicitors,  and  it  appearing  to  the  court  that  said  the 
Union  Trust  Company  has  filed  its  petition  in  the  above-en- 
titled suits  for  direction  to  the  receivers  therein  as  to  the  apn 
plication  of  the  income  of  said  road,  and  praying  that  said 
receivers  may  be  directed  to  spend  no  part  of  the  income  de- 
rived or  earned  by  the  property  covered  by  the  mortgage 
given  to  the  Union  Trust  Company  upon  property  not  cov- 
ered by  said  mortgage  given  to  said  the  Union  Trust  Company, 
and  that  incomes  derived  from  the  property  covered  by  said 
mortgage  given  to  the  Union  Trust  Company,  over  and  above 


1264 


SUITS    IN    EQUITY. 


the  operating  expenses  thereof,  be  held  and  reserved  pending 
said  suits  for  the  benefit  of  said  property  and  payment  of  the 
interest  due  upon  the  bonds  secured  by  said  mortgage  to  the 
Union  Trust  Company,  and  for  other  purposes  as  in  said  pe- 
tition set  forth.  And  the  same"  having  been  presented  to  the 
court,  it  is  ordered  that  the  same  be  set  down  for  hearing 

before  me,  at  chambers,  in  the  city  of ,  on  the day 

of ,  at  lo  o'clock  a.  m.,  or  as  soon  thereafter  as  counsel 

be  notified  of  the  time  and  place  of  the  hearing  thereof. 
Dated . 


No.  849. 

Petition  of  Receiver  for  Protection.  (1) 

[Caption.] 
To  the  Honorable  the  Judge  of  the  United   States  District 
Court  for  the District  of . 

Your  petitioner,  S.   F.,  respectfully  represents  that  by  an 

order  of  this  court  made  on  the  day  of  ,  he  was 

appointed  receiver  of  the  C.  D.  Company,  owner,  as  lessee, 

of  a  line  of  railroad  from  the  city  of and  state  of , 

through  the  state  of to  the  city  of in  the  state  of 

,  with  directions  to  operate  the  same  as  a  common  car- 
rier of  passengers  and  freight,  which  he  has  been  doing  ever 
since  and  which  he  is  still  engaged  in  doing. 

Your  petitioner  further  says  that,  owing  to  the  falling  off 
in  the  receipts  of  the  railroad  from  causes  beyond  his  control, 
it  became  necessary  to  reduce  the  wages  of  the  officers  and 
employes  employed  by  him  as  such  receiver,  in  the  operation 

of  said  road,  and  that  accordingly  on  the  day  of , 

he  issued  an  order  reducing  by  ten  per  cent,  monthly  salaries 
exceeding  $35.00,  or  daily  wages  exceeding  $1.10  to  be  ef- 
fective on  the  first  day  of . 

Your  petitioner  further  says  that  A.  B.  and  others,  claim- 
ing to  represent  the  employed  of  said  road,  did  file  in  this 


RECEIVERS ORIGINAL    PROCEEDINGS.  1265 

cause  their  peition  on  the day  of ,  asking  the  court 

to  modify  said  order  of ,  and  that  said  petition  was  fully 

heard  by  this  court  upon  the  evidence  and  was  upon  argu- 
ment and  after  due  consideration  thereof  denied  and  dismissed 

by  an  order  herein  made  on  the  day  of ,  and  that 

most  of  said  employes,  as  your  petitioner  is  informed  and  be- 
lieves, acquiesce  in  said  decision  and  wish  to  continue  in  the 
employ  of  your  receiver,  but  that  others  are  not  satisfied 
therewith  and  propose  to  leave  the  employ  of  the  receiver; 
that  your  petitioner  recognizes  the  right  of  any  of  said  em- 
ployes to  leave  his  employ  if  dissatisfied  with  their  wages  and 
is  prepared  to  fill  their  places  with  new  men,  should  they 
withdraw.  But  your  petitioner  says  that  as  a  result  of  care- 
ful investigation  he  has  reason  to  believe  and  does  believe 
that  such  dissatisfied  employes  propose  "  to  tie  up  "  the  road 
operated  by  your  petitioner,  that  is,  to  interfere  with  and  ob- 
struct the  operation  of  said  railroad  and  of  said  property  at 

,  and  other  places,  by  molestation  or  otherwise,  and  that 

there  is  imminent  danger  that  they  will,  by  themselves  and 
others,  interfere  with  the  operation  of  said  railroad  and  said 

property  at  ,  and  other  places,  by  your  receiver  in  this 

cause,  and  that  there  is  imminent  danger  of  damage  and  de- 
struction being  done  at  said  places  at  their  hands,  for  pre- 
vention whereof  your  petitioner  asks  that  by  an  order  of  this 

court  the  marshal  of  the  United  States  for  the  District 

of be  directed  to  take  such  means  by  the  appointment  of 

sufficient  deputy  marshals  as  may  be  necessary  to  fully  pro- 
tect said  property  and  persons  engaged  in  the  operation  there- 
of from  molestation  of  any  sort  or  description  by  any  person 
or  persons  not  authorized  to  interfere  therewith. 

S.  F. 
[Verification.^ 

(i)  This  petition  was  filed  in  the  case  of  Thomas  vs.  C.  N.  O  &  T.  P. 
Ry.,  pending  in  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 

For  order  on  this  petition  granting  rehcf  prayed,     see  next  form. 


1266  SUITS   IN    EQUITY. 

No.  850. 

Order    Directing   Marshal   to   Appoint    Deputies   to   Protect 
Property  in  the  Hands  of  Receiver  (i). 

[Caption.l 

S.  F.,  the  receiver  of  this  court  heretofore  appointed  in 
this  cause,  having  by  his  petition  this  day  filed  herein  made 
it  appear  to  the  satisfaction  of  this  court  that  there  is  danger 
of  damage  ta  the  property  of  the  C.  D.  Company  in  the  state 

of ,  in  his  possession  as  receiver  of  this  court,  and  of  in- 

tereference  with  his  employes  engaged  in  the  operation,  man- 
agement and  control  of  said  property  by  certain  ill-disposed 
persons;  and  said  receiver  having  by  his  said  petition  prayed 
this  court  to  make  such  orders  as  may  be  necessary  for 
the  protection  of  said  property  and  of  said  employes. 

It  is  now  hereby  ordered  that  the  marshal  of  the  United 
States  for  the District  of ,  be,  and  he  hereby  is  di- 
rected and  required  to  take  all  steps  that  may  be  necessary 
and  proper  to  guard  and  protect  the  property  of  the  C.  D. 

Company  in  the District  of  the  state  of  from  any 

molestation  whatever  or  from  any  unauthorized  interference 
therewith,  or  any  trespass  thereon  by  any  person  or  persons 
whatsoever,  and  to  protect  the  employes  of  said  receiver  in 
said  district  engaged  in  the  operation,  care  or  control  of  said 
property,  and  that  he  do  appoint  such  number  of  deputy 
marshals  and  watchmen  as  may  be  required  to  carry  this  or- 
der into  full  effect. 

Dated  . 

(i)  This  order  was  entered  in  Thomas  vs.  C.  N.  O.  &  T.  P.  Ry.  in 
the  Circuit  Court  of  the  United  States  for  the  Southern  District  of  Ohio. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1267 

No.  851. 

Intervening  Petition  to  Recover  a  Judgment  of  a  State  Court. 

[Caption.^ 
To  the  Honorable  District  Court  of  the  United  Scutes  for  the 
District  of : 

Your  petitioner,  B.  F.,  who  resides  in ,  in  the  county  of 

,  in  the  state  of ,  praying  for  leave  to  intervene  in  the 


the  above-styled  and  numbered  cause,  and  for  other  orders, 
respectfully  represents  to  the  honorable  court  that  on,  to  wit, 
the day  of ,  1894,  prior  to  the  order  of  this  honora- 
ble court  placing  the  mortgaged  property  of  the  said  C.  &  D. 
Railway  Company  into  the  control  and  possession  of  the  re- 
ceivers, S.  M.  and  H.  C,  and  prior  to  the  order  of  the  hon- 
orable district  court  of  the  United  States  for  the  district  of 

' placing  such  property  in  control  and  possession  of  said 

receivers,  the  intervenor  herein,  said  B.  F.,  instituted  suit  in 

the  justice's  court  for  precinct  No.  i,  in county, , 

against  the  T.  &  H.  Railroad  Company,  on  a  claim  of 

dollars  for  damages  for  material  taken  and  appropriated  by 
the  said  C.  &  D.  Railway  Company  in  the  construction  and 
building  of  its  said  railroad;  that  the  T.  &  H.  Railroad  Com- 
pany is  and  was  the  C.  &  D.  Railway  Company  construct- 
ing, operating,  owning,  and  controlling  under  the  said  name 
of  the   T.  &  H.  Railroad  Company,  a  line  of  railway  called 

the    T.    &    H.    Railroad,    and    running    from    T.,    in 

county,  ,  through    S,  in  county,  ,  and    into 

county, ,  on  in  the  direction  of  H.,  in county, 

i  together  with  a  tap  or  spur  running  from  said  town 

of  S,  in  said county,  to  the  town  of  L-,  in  the  county  of 

,  state  of .     That  during  the  pendency  of  said  suit 

in  said  justice  court  said  property,  known  as  aforesaid 
as  the  T.  &  H.  Railroad,  was  by  order  of  the  district  court 

of  the  United  States  for  the  district  of and  by  order  01 

this  honorable  court  made  in  this  cause,  placed  in  the  pos- 
session and  control  of  said  S.  M.  and  H.  C.  as  receivers  as 


1268  SUITS    IN    EQUITY. 

aforesaid.  That  during  the  pendency  of  said  suit  in  said 
justice  court,  and  after  the  said  order  appointing  said  S.  M. 
and  H.  C.  as  receivers  as  aforesaid,  placing  said  T.  &  H. 
Railroad  in  their  possession,  in  this  cause  said  S.  M.  and  H. 
C,  receivers,  v^ere  duly  served  with  citations  in  terms  of  law 
to  appear  and  answer  the  suit  of  the  said  B.  F.  in  said  jus- 
tice court,  and    thereafter,  to   wit,  on  the day  of , 

said  service  of  citation  on  said  receivers  being  perfect  and 
complete,  said  justice  court,  at  and  during  its  regular  term 
thereof,  gave  judgment  in  favor  of  the  said  B.  F.  for  the  sum 

of dollars,  and  for  costs  of  suit,  which  said  costs  amount 

to  the  sum  of — —  dollars  against  the  said  T.  &  H.  Railroad 
Company  and  against  S.  M,  and  H.  C,  receivers;  and  said 
judgment  declares  and  establishes  said  sum,  together  with 
said  costs,  as  a  charge  and  lien  on  the  earnings  of  the  said  T. 
&  H.  Railroad  Company. 

And  this  intervenor  says  said  judgment  is  a  lien  of  the 
sixth  class  on  the  earnings  of  said  C.  &  D.  Railway,  and 
prays  an  order  of  this  honorable  court  conferring  the  same 
as  such  lien  and  for  the  payment  thereof  by  said  receivers. 

Your  petitioner  attaches  hereto,  marked  "Exhibit  A,"  a 
true  copy  of  said  judgment  of  said  justice  court,  certified  to 
as  being  true  and  correct  by  S.  H.,  said  justice  trying  said 
cause*,  accompanied  by  the  certificate  of  W.  W.,  clerk  of  the 

county  court  of county,  ,  under  the  seal  of  said 

county  court,  that  said  S.  H.  is,  and  on  the day  of , 

was,  a  duly  elected  justice  of  the  peace,  and  that  the  signa- 
ture attached  to  said  copy  of  judgment  is  the  genuine  signa- 
ture of  said  justice  of  the  peace,  and  intervenor  asks  that 
the  same  be  taken  as  a  part  of  this  petition. 

And  the  intervenor  prays  for  such  further  or  other  orders 
respecting  said  claim  as  may  seem  to  the  honorable  court 
equitable,  proper,  and  necessary  under  the  fact,  and  so  as 
in  duty  bound  will  ever  pray.  D.  H., 

Attorney  for  Intervenor,  B.  F. 

[A^^ack  Exhibit  "^."] 


RECEIVERS — ORTGTN'AL   PROCEEDINGS.  1269 

No.  852. 
Certified    Proceedings    Before    Magistrate — "Exhibit   A." 

--       B.  F.  ^ 

vs.  V 

T.  &  H.  Railroad  Company,  j 

On  this day  of ,  came  the  parties  plaintiff  and 

defendant  by  their  attorneys  and  announced  themselves 
ready  for  trial,  and  came  a  jury  of  good  and  lawful  men  of 

county,  to  wit,  J.  W.,  and  five  others,  who,  after  being 

duly  impaneled  and  sworn  according  to  law,  after  hearing 
the  pleadings  and  evidence  in  the  cause  (counsel  declining 
all  argument),  retired  to  consider  of  their  verdict,  and  re- 
turning   into  open   court    submitted    the    following    report: 

"We,  the  jury,  find    for  plaintiff  dollars,  amount  of 

damages  claimed.  (Signed)  J.  W.,  Foreman."  It  appear- 
ing to  the  court  that  the  defendant,  the  T.  &  H.  Railroad 
Company,  is  a  corporation  engaged  in  constructing  its  road 

and  operating  the  same  in county, ;  that  the  said 

company  is  justly  indebted  to  the  plaintiff,  B.  F.,  for  dam- 
ages sustained  by  him  from  the  appropriation  of  his  earth 
and    soil    by  said  railroad  company  in  the  construction  of 

the  road-bed  of  said  company  in county,  in  the  sum  of 

dollars,  as  found  by  the  jury;  that  since  the  institution 

of  this  suit  said  railroad  company  and  corporation  as  afore- 
said has  been  placed  in  the  hands  of  the  defendants,  S.  M. 
and  H.  C,  as  receivers ;  that  said  receivers,  acting  by  and 
through  their  agent,  C.  R.,  and  others,  have  possession  of  all 
the  property  of  said  corporation,  and  are  operating  said  rail- 
road and  business  in county, ,  and  are  receiving  all 

the  earnings  of  said  railroad  company;  that  said  S.  M.  and 
H.  C,  receivers  as  aforesaid,  have  been  duly  cited  to  answer 
the  demand  of  the  plaintiff  in  this  cause.  It  is  therefore 
ordered  and  adjudged  by  the  court  that  plaintiff,  B,  F.,  do 
have  and  recover  of  and  from  the  defendant,  the  T,  &  H. 
Railroad  Company,  and  S.  M.  and  H.  C,  receivers  as  afore- 
said, the  sum  of dollars  and  all  costs  of  this  suit ;  and 


1270  SUITS    IN    EQUITY. 

a.  lien  is  hereby  established  and  fixed  in  the  earnings  of  said 
defendant  corporation,  the  T.  &  H.  Railroad  Company, 
which  may  now  be  in  the  hands  of  said  receivers  afore- 
said, or  C.   R.,  agent  of  said  receivers,   in  county,   as 

aforesaid,  and  in  the  earnings  of  said  defendant  railroad  com^ 
pany  which  may  hereafter  come  into  the  hands  of  said  receiv- 
ers and  said  R.,  agent  of  said  receivers  as  aforesaid ;  and 
said  S.  M.  and  H.  C.  are  hereby  directed  out  of  the  earnings 
of  said  railroad  company  coming  to  their  hands  to  pay  off 
and  satisfy  the  judgment  herein  rendered  in  favor  of  said 
plaintiff,  B.  F.,  within  thirty  days  from  the  date  of  this  judg- 
ment. That  if  said  receivers  shall  fail  or  refuse  to  pay  off 
and  satisfy  said  judgment  herein  rendered  in  favor  of  plaintiff, 
B.F.,  within  the  time  as  herein  directed,  then  that  the  said  C. 

R.,  so  representing  said  receivers  in county  as  aforesaid,  is 

hereby  direoied  to  pay  off  and  satisfy  said  judgment  within 
sixty  days  from  the  date  of  this  judgment  out  of  any  money 
coming  to  his  hands,  the  earnings  of  said  T.  &  H.  Rail- 
road Company.  Upon  failure  of  said  receivers  and  said  C.  R. 
to  pay  off  and  satisfy  the  judgment  herein  given  in  favor  of 
plaintiff,  B.  F.,  as  hereinbefore  directed,  then  let  execution 
issue  against  the  defendants,  the  T.  &  H.  Railroad  Company 
and  S.  M.  and  H.  C,  for  the  amount  unpaid  on  said  judgment. 

Done  this day  of .  S.  H., 

J.  P.  C.  Co. 

No.  853. 

Motion  to  Refer  Intervention  to  a  Special  Master. 

[Oz/^/zb;/.] 

/;/  re  Intervention  of  B.  F. 

Now  comes  B.  F.,  intervenor,  by  counsel,  and  moves  the 
honorable  court  that  his  petition  of  intervention  filed  in  the 

papers  of  this  cause  on  the day  of ,  be  referred  in 

all  things  to  E.  M.,  Esq.,  master  in  chancery,  for  his  exami- 
nation and  report;  and  intervenor  with  respect  so  prays. 

D.  H., 
Attorney  for  B.  F. 


RECEIVERS ORIGINAL   PROCEEDINGS.  1271 

No.  854. 

Petition  to  Intervene  to  Foreclose  a  Mortgage. 

f  Caption^ 
The   Petition   of  the  Safe  Deposit  Company  of  the  city  of 
,  State  of  ,  Trustee: 

The  petition  of  the  Safe  Deposit  Company  respectfully 
shows : 

First.     Your  petitioner  is  a  corporation  duly  incorporated, 

organized,  and  existing  under  the  laws  of  the  state  of , 

and  has  been  such  since  long  prior  to  the   ist  day  of  June, 
i8— . 

Second.  The  defendant,  the  E.  &  L.  River  Railroad  Com- 
pany, was  specially  chartered  by  an  act  of  the  legislature  of 
the  state  of  ,  entitled  "An  act  to  organize  and  incor- 
porate the  E.  &  L.  River  Railroad  Company,"  which  act  was 
Inly  approved  on  the day  of . 

Third.  On  the  ist  day  of  June,  i8 — ,  the  said  E.  &  L. 
River  Railroad  Company  executed  its  mortgage  to  your  pe- 
titioner, as  trustee,  to  secure  certain  first-mortgage  bonds  as 
by  said  first  mortgage  provided.  A  copy  of  said  mortgage  is 
hereto  attached,  marked  "Exhibit  A,"  and  made  part  hereof. 
By  the  terms  of  said  mortgage  the  railroad  of  said  E.  &  L. 
River  Railroad  Company,  and  all  of  its  property  then  exist- 
ing and  to  be  afterwards  acquired,  was  conveyed  to  your 
petitioner,  as  trustee,  to  secure  certain  mortgage  bonds  in 
said  mortgage  particularly  described.  The  number  of  bonds 
authorized  to  be  issued  under  said  mortgage  was  not  to  ex- 
ceed   ,  being  at  the  rate   of  $ per  mile  of  railroad 

constructed  at  the  time  of  the  execution  of  the  said  mortgage, 

and  a    further  issue  of  $ per    mile    as    additional    road 

should  be  constructed  in  sections  not  less  than miles. 

Fourth.     The  railroad  of  said  E.  &  L.  Railroad  Company 

is   constructed    from    ,  via   ,  to   ,  through   the 

counties  of  \jiame  all  the  counties  and  state\  a  distance  of 

about miles.     From to is  a  standard  gauge, 

and  from to is  a  narrow  gauge. 


1272  SUITS    IN    EQUITY. 

Fifth.     There  have  been  certified  and  delivered,  and  are 

now  outstanding,  of  the  bonds    secured  by    the    said 

mortgage,  but  the  rights  of  the  holders  of thereof  to 

5  hare  in  the  protection  of  the  lien  of  the  mortgage  is  dis- 
puted by  the  holders  of  the  remaining  bonds,  as  will 

more  fully  appear  by  reference  to  the  sixteenth  section  of 
this  petition. 

SixtJi.     On  the day  of ,  the  said  E.  &  L.  River 

Railroad  Company  executed  and  delivered  to  the  C.  &  D. 
Railroad  Company  its  certain  deed  or  instrument  in  writing, 
whereby  it  conveyed  all  of  its  property  to  the  C.  &  D.  Railway 
Company,  defendant  herein.  The  said  conveyance  was  made 
by  virtue  of  authority  claimed  by  the  parties  thereto  to  be 
conferred  by  section  4  of  an  act  of  the  legislature  of  the  state 

of ,  approved  the day  of ,  entitled  "An  act  in 

relation  to  the  C.  &  D.  Railway  Company,  late  the  U.  P.  Rail- 
way Company,  Southern  Branch,"  and  also  by  virtue  of  the 
charter  powers  of  the  E.  &  L.  River  Railroad  Company. 

Seventh.  On  December  i,  18 — ,  the  said  E.  &  L.  River 
Railroad  Company  leased  all  of  its  lines  then  owned  and 
thereafter  to  be  acquired  to  the  M.  P.  Railway  Company. 

Eighth.  After  the  C.  &  D.  Railway  Company  acquired 
the  E.  &  E.  River  Railroad,  the  said  railway  company  turned 
over,  under  its  lease,  the  said  E.  &  L.  River  Railroad  to  the 
M.  P.  Railway  Company,  which  was  thereafter  operated  by 
the  said  last-named  company,  under  the  lease,  as  a  part  of 
the  C.  &  D.  Railway. 

Ninth.     On  the  day  of  ,  a  suit  in  equity  was 

begun  in  the  circuit  court  of  the  United  States  for  the  district 

of by  The  A.  B.  Trust  Co.  of ,  trustee,  under  the 

mortgage  made  by  the  C.  &  D.  Railway  Compai:y,  to  secure 
certain  bonds  therein  described,  to  foreclose  the  said  mort- 
gage, and  for  the  appointment  of  receivers  for  the  said  mort- 
gaged property,  default  having  been  made  in  the  payment  of 
interest  on  said  mortgage  bonds;  in  which  suit  the  C.  &  D. 
Railway  Company  and  the   M.   P.  Railway  Company  were 


RECEIVERS ORIGINAL    PROCEEDINGS.  1273 

made  parties  defendant,  duly  served  and  appeared.  The  bill 
of  complaint   and   of   subsequent   pleadings   and  proceedings 

in  the  said  United  States  district  court  for  the  district 

of have  been,  under  the  order  of  this  court  in  this  cause, 

filed  herein,  and  your  petitioner  begs  to  refer  thereto. 

Tenth.     On  the  day  of  ,  in  the  said  cause,  an 

order  was  entered  appointing  S.  M.  and  H.  C.  receivers  of 
the  C.  &  D.  Railway  Company,  including  all  of  its  properties 
in  [name  the  states],  and  including  the  line  of  railroad  here- 
inbefore referred  to  as  the  E.  &  L.  River  Railroad. 

Eleventh.  On  the  day  of the  ancillary  proceed- 
ings, in  which  this  petition  is  now  presented,  were  begun  by 
the  said  A.  B.  Trust  Company  in  the  district  court  of  the 
United  States  against  the  C.  &  D.  Railway  Company  and  the 
M.'P.  Railway  Company,  in  each  of  the  districts,  viz.,  the 
northern,  southern  and  eastern,  of  the  state  of ,  to  fore- 
close the  said  mortgage  of  the  C.  &  D.  Railway  to  the  said 

A.  B.  Trust  Company,  and  in  aid  of  the  said  suit  in  , 

and  asking  for  the  appointment  of  receivers. 

Tzvelfth.     On  the day  of ,  an  order  was  made  in 

each  of  said  courts   in  ,  appointing  and  confirming  the 

said  S.  M.  and  H.  C.  receivers  of  the  C.  &  D.  Railway  Com- 
pany,  including  all  of  its  lines  in  the  state  of  ,  among 

which  was  the  E.  &  L.  River  Railroad. 

Thirteenth.      Afterwards,    on   the   day   of  ,    an 

amended  bill  was  filed  in  the  original  suit  in  the  district  court 
of ,  making  certain  other  railroad  companies  parties  de- 
fendant, among  which  was  the  E.  &  L.  River  Railroad  Com- 
pany, and  an  order  was  made  on  that  day  extending  the 
receivership  of  the  said  S.  M.  and  H.  C,  specifically  and  by 

name,  over  certain  lines  of  road   in  ,  among  them  the 

E.  &  L.  River  Railroad. 

Fourteenth.   On  the day  of ,  an  amended  bill  was 

filed  in  each  of  the  said  district  courts  of  the  United  States 

for   ,    making   certain   other   parties    defendant,    among 

whom  was  the  E.  &  L.  River  Railroad  Companv,  and  by  an 


\274  SUITS    IN    EQUITY.    . 

order  entered  in  the  said  cause  the  receivership  of  the  said  S. 
M.  and  H.  C.  was  specifically  extended  over  certain  railroads 
in ,  and  among  them  was  the  said  E.  &  L.  River  Railroad. 

Fifteenth.  By  virtue  of  the  original  orders  appointing 
them,  the  said  receivers,  S.  M.  and  H.  C.  took  possession  of 
all  the  lines  of  the  C.  &  D.  Railway  Company,  including  the 

E.  &  L.  River  Railroad,  on  the day  of ,and  have  since 

been  in  possession  of  and  operating  the  same,  and  they  are 
now  in  possession  of  and  operating  said  railroads  by  virtue  of 
the  said  original  orders  and  aforesaid  orders  made  upon  the 
said  amended  bills. 

Sixteenth.  That  there  were  prepared  for  issue  by  the  said 
E.  &  Iv.  River  Railroad  Company,  and  certified  by  your  peti- 
tioner, under   mortgage   dated  ,   \state  niunber\  bonds. 

Of  this  \state  number]  bonds  are  now  outstanding  in  hands  of 
owners  whose  title  is  not  in  dispute,  and  they  allege  that  the 
remaining  [state  mmtber]  of  said  bonds  were  acquired  by  the 
A.  B.  Trust  Company  of  New  York,  trustee,  under  the  mort- 
gage made  by  the  C.  &  D.  Railway  Company,  under  such 
conditions  that  the  said  A.  B.  Trust  Company  is  not  entitled, 
as  against  them,  to  enforce  the  same  as  if  entitled  to  the  pro- 
tection of  the  lien  of  the  mortgage  made  to  your  petitioner. 
A  copy  of  a  notice  received  from  the  holders  of  certain  of  the 
bonds  is  hereto  attached  as  "Exhibit  B."  The  said  E.  &  L. 
River  Railroad  Company  has  made  default  in  the  payment 
of  the  coupons  which  fell  due,  and  upon  all  coupons  maturing 
subsequently  thereto. 

Seventeenth.  Your  petitioner  has  been  requested  by  the 
said  A.  B.  Trust  Company,  as  the  holder  of  [state  number] 
bonds,  and  also  by  the  holders  of  the  said  [state  number] 
bonds,  to  take  steps  to  protect  the  rights  of  the  owners  of  the 
bonds  secured  thereby,  so  that  the  holders  of  all  the  bonds 
now  outstanding  have  now  united  in  the  request  that  this 
action  be  taken. 

Eis:hteenth.    The  mortgage  of  the  said  E.  &  L.  River  Rail. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1275 

road  Company  to  your  petitioner  constitutes  a  prior  and  para- 
mount lien  upon  all  of  the  railroads  and  property  of  the  said 
E.  &  L.  River  Railroad  Company  to  any  claim  of  the  said  A.  B. 
Trust  Company  or  the  said  C.  &  D.  Railway  Company,  or  any 
of  the  other  parties  to  this  suit,  or  to  the  said  foreclosure  suit 

in  the  said  district  court  of  the  United  States  for  the 

district  of . 

Nineteenth.  Your  petitioner  further  shows  that  in  the  said 
mortgage,  made  and  executed  by  the  said  E.  &  L.  River  Rail- 
road Company  to  your  petitioner,  it  is  provided  as  follows : 

"In  case  of  default  of  the  payment  of  any  interest  upon 
said  bond,  and  such  default  continuing  twelve  months,  the 
whole  principal  sum  mentioned  in  each  and  all  of  said  bonds 
then  outstanding  shall,  at  the  option  of  the  holders  of  one- 
third  in  interest  of  the  said  bonds  then  outstanding,  become 
due  and  payable,  and  in  that  event,  or  in  case  of  default  in 
payment  of  the  principal  of  said  bonds,  or  any  of  them,  at 
the  maturity  of  said  bonds,  the  party  of  the  second  part  or 
its  successor  or  successors  in  this  trust  shall  foreclose  this 
mortgage  by  legal  proceedings,  and  sell,  or  cause  to  be  sold, 
the  said  railway  and  property,  and  all  the  rights,  privileges, 
and  franchises,  and  all  the  appurtenances  herein  conveyed,  as 
above  expressed,  including  lands  and  land  scrip,  as  well  as 
all  the  benefit  of  the  equity  of  redemption  of  the  party  of  the 
nrst  part  in  and  to  the  same,  with  the  benefit  of  the  franchise 
aforesaid,  which  sale  shall  be  at  public  auction  in  the  city  of 

New  York,  or  at ,  on  previous  notice  of  the  time  and 

place  of  such  sale  by  advertisement,  published  not  less  than 
three  times  per  week  for  ten  weeks,  in  at  least  two  newspa- 
pers of  general  circulation  published  in  the  city  of  New  York, 

two  in  the  city  of ,  and  two  in  the  state  of ,  and 

in  such  other  places  as  may  be  required  by  law." 

Wherefore,  your  petitioner  prays  permission  to  file  a  bill  to 
foreclose  the  said  mortgage  in  the  district  court  of  the  United 
States  for  the district  of ,  at ,  and  for  the  appoint- 
ment of  a  receiver  thereunder,  and  for  such  other  and  further 


1276  SUITS    IN    EQUITY. 

order  in  the  premises  as  may  be  necessary  to  fully  protect  the 
rights  of  the  owners  of  the  bonds  secured  by  said  mortgage. 

R.  Z., 
Solicitor  for  the  Safe  Deposit  Co. 

[Attach  exhibits  "A"  and  "B."-] 


No.  855. 

Order  Granting  Leave  to  Intervene  to  Foreclose  a 
Mortgage.  (1) 

And  now,  this  day  of  ,  the  petition  of  the  Safe 

Deposit  Company  being  before  the  court,  upon  consideration 
thereof  and  upon  motion  of  R.  Z.,  solicitor  for  said  peti- 
tioner, and  W.  B.,  appearing  for  the  E.  &  L.  River  Railroad 
Company,  and  R.  X.  appearing  for  the  C.  &  D.  Railway 
Company : 

It  is  ordered  that  the  prayer  of  the  petitioner  be  granted, 
and  that  the  said  petitioner  have  leave  to  file  a  bill  to  fore- 
close the  mortgage  referred  to  in  said  petition,  and  for  other 
relief  as  prayed  for  in  said  petition.  A.  P., 

District  Judge. 

(1)  Parties  may  intervene  to  foreclose  a  mortgage  on  a  railroad  in 
a  suit  in  which  the  property  is  in  custodia  legis,  or  file  an  independent 
bill.  This  question  is  thoroughly  discussed  in  the  case  of  Compton  v. 
R.  R.  Co.,  15  C.  C.  A.  397.  68  Fed.  263;  and  Toledo,  St.  L.  &  K.  C.  R. 
R.  Co.  V.  Continental  Trust  Co,  36  C.  C.  A.  155,  95  Fed.  497;  see  also 
Morgan's  Co.  v.  Tex.  Central  Ry.  Co.,  137  U.  S.  201;  Lumley  v.  R.  R. 
Co..  22  C.  C.  A.  60,  76  Fed.  66;  Blake  v.  Coal  Co.,  28  C.  C.  A.  678,  84 
Fed.  1014. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1277 

No.  856. 

Petition  for  Leave  to  Intervene  to  Replevy  Goods  Furnished  a 
Manufacturing  Company. 

\_Caption.^ 

Now  comes  the  W.  D.  Co.,  a  corporation  organized  under 
the  laws  of  the  state  of ,  and  represents  to  this  hon- 
orable court  that  the  said  defendant  and  its  receivers  have 
now  in  their  possession  and  control  large  quantities  of  [state 
the  goods^  as^  Manilla  and  New  Zealand  hemps  and  the  pro- 
ducts thereof,  or  as  may  be']^  the  property  of  this  company 
received  from  it  by  defendant  for  the  sole  and  only  purpose 
of  being  manufactured  by  said  defendant  into  [binder  twine, 
or  as  may  be']  by  this  company  under  contract  in  that  behalf 

entered  into  on  the day  of ,  which  hemps  and  twine 

are  of  the  value  of thousand  dollars.     Said  property  is 

now  in  large  part  at  defendant's  mills  in and ,  in 

the  state  of ,  the  exact  amount  thereof  in  each  mill  this 

company  is  unable  to  say,  because  it  is  unable  to  get  the  re- 
quired information  from  said  company  or  its  receivers. 

There  is  great  and  imminent  danger  of  said  fibre  and  the 
twine  manufactured  therefrom  being  mixed  and  mingled  with 
other  fibres  and  twine  pertaining  to  said  company,  and  thus 
entailing  great  and  irreparable  loss  upon  this  company. 

The  company  avers  that  the  means  of  identification  are 
such  now  as  that — if  permitted  by  this  court — it  can  recover 
its  property  in  large  amount.  This  company  therefore  moves 
this  honorable  court  for  an  order  for  leave  to  bring  an  action, 
or  actions,  in  this  court  or  elsewhere,  against  said  receivers, 
to  enable  it  to  recover  its  said  property  and  prevent  the  im- 
minent and  impending  loss  aforesaid. 

It  further  moves  the  court  to  require  said  company  and  its 
said  receivers  to  make  an  immediate  statement  to  this  com- 
pany, showing  the  exact  whereabouts  of  all  its  said  fibre  and 
the  twine  manufactured  therefrom,  and  for  such  other  relief 
as  equity  and  justice  may  require.  X.  &  X., 

Attornevs  for  W.  D.  Co. 


1278  SUITS   IN    EQUITY. 

No.  857. 

Motion  to  Restrain  Receivers  in  Accordance  with  the 

above  Petition. 
\_Caption.~\ 

The  said  W.  D.  Co.  now  comes  and  moves  the  court  to  re- 
strain the  said  receivers  from  shipping  away  or  dehvering  any 
binder  twine  in  their  possession  within  the  jurisdiction  of 
this  court  to  any  other  person  than  to  said  W.  D.  Co.  until 
the  question  can  be  tried  as  to  their  right  to  the  same  under 
the  contract  referred  to  in  their  said  bill  filed  herein  on  the 

day  of .  X.  &  X., 

Attorneys  for  W.  D.  Co. 


No.  858. 

Petition  for  Permission  to  make  Receiver  Party  to  a  Suit 
in  a  State  Court  (i). 

[^Caption  ^ 

C.  L.,  the  above-named  petitioner,  respectfully  shows  to 
your  honors,  that  an  action  is  now  pending  in  the  superior 

court  of ,  a  court  of  the  state  of ,  sitting  in  the  city 

of ,  in  said  state,  nuixibered on  the  docket  of  said 

court,  wherein  said  C.  L.  is  plaintiff  and  the  C.  &  D.  Rail- 
way Company  is  defendant.  In  said  action  your  petitioner 
avers  that  said  defendant  has,  without  her  consent  and  au- 
thority, and  without  authority  of  law,  constructed  a  railroad 
track  on  premises  owned  by  your  petitioner  on  the  south 
side  of  S  street,  east  of  H  street,  in  said  city;  that  said 
defendant  has  also  constructed  a  railroad  track  across 
S  street  in  the  neighborhood  of  said  premises  of  your 
petitioner  without  authority  of  law  or  the  consent  of  your 
petitioner;  that  said  defendant  was  at  the  time  said  action 
was  brought  maintaining  and  operating  said  tracks,  and 
thereby  obstructing  the  ingress  and  egress  of  your  said  peti- 
tioner to  her  said  property,  and  using  her  property  ille- 
gally.    In  said  action  your  petitioner  prayed  that  the  said 


RECEIVERS ORIGINAL    PROCEEDINGS.  1279 

defendant,  the  C.  &  D.  Railv/ay  Company,  might  be  perpet- 
ually enjoined  from  maintaining  and  operating  said  tracks, 

and  required   to   pay  the   plaintiff  the  sum   of  dollars 

damages  for  the  use  of  same  already  had.     On  the day 

of ,  said  superior  court  of ,  made  an  order,  upon  the 

motion  of  your  petitioner,  enjoining  the  said  C.  &  D.  Railway 
Company,  until  further  orders  of  said  court,  from  maintaining 
and  operating  said  tracks  on  the  premises  aforesaid  of  your 
petitioner  and  on  said  S  street,  upon  your  petitioner's  giv- 
ing bond  in  the  sum  of dollars.     Said  bond  was  that 

day  given,  and  the  injunction,  as  ordered  by  the  court,  was 
issued  and  served  upon  the  C.  &  D.  Railway  Company.     On 

the day  of said  railway  company  filed  its  answer 

in  said  cause,  taking  issue  with  the  averments  of  your  peti- 
tioner that  said  track  on  S  street  was  laid  without  the  au- 
thority of  law,  and  whil^  admitting  that  the  track,  at  the 
time  the  petition  of  said  C.  L.  was  filed  in  said  court,  was 
laid  upon  the  premises  of  your  petitioner,  averring  further 
that  since  said  track  had  been  removed,  and  was  then  sit- 
uated upon  the  premises  of  said  railway  company;  and  at 
the  same  time  said  railway  company  filed  its  motion  piaying 

said  court  to  dissolve  said  order  of  injunction.     On  the 

day  of ,  by  leave  of  said  court,  your  petitioner  filed  her 

reply  in  said  court,  admitting  that  said  track  that  was  upon 
her  premises  at  the  time  said  action  had  been  begun  had 
been  moved,  but  averring  that  the  same  as  then  located  was 
still  upon  the  property  of  your  petitioner. 

Said  injunction  is  still  in  full  force  and  unrevoked. 

Afterwards  in  this  suit  brought  by  A.  B.  against  the  C.  & 
D.  Railway  Company  in  this   court,  your  honors,  upon  the 

day  of  ,  1 8 — ,   appointed  S.   M.   receiver   of  said 

railroad  company.     Said  S.  M.  now  claims  that  the  order  of 

injunction  of  said  superior  court  of is  not  operative  and 

binding  upon  him;  and  further,  that,  as  your  petitioner  is 
informed,  he,  the  said  S.  M.,  is  not  a  party  to  said  cause  in 
s?>id  superior  court  of ;    and  said  S.  M.  is  now  using. 


1280  SUITS   IN    EQUITY. 

maintaining   and    operating    said    tracks    in    defiance   of    said 

orders  of  said  superior  court  of  ,  and  to  the  prejudice 

of  your  petitioner. 

Your  petitioner  therefore  prays  the  leave  of  this  court  to 
sue  said  S.  M.  as  such  receiver,  and  to  cause  him  to  be  made 
a  party  defendant  in  said  cause  now  pending  in  said  superior 

court  of ,  and  that  he  be  required  to  submit  himself  fully 

to  the  jurisdiction  of  said  court  with  reference  to  the  right  of 
said  C.  &  D.  Railway  Company,  and  of  himself  as  its  re- 
ceiver, to  construct,  maintain  and  operate  the  tracks  of  which 
your  petitioner  in  said  action  complains.  C.  L. 

R.  X., 

Of  Counsel  for  Petitioner. 

(1)  It  is  a  general  rule,  that  before  suit  is  brought  against  a  receiver 
that  leave  of  court  must  be  had  from  the  court  appointing  such  re- 
ceiver, and  suing  without  such  leave  is  contempt  of  the  court  appoint- 
ing him.  See  Beach's  Modern  Eq.  Prac,  Sec.  744;  Wiswell  v.  Sampson, 
14  How,  65;  Davis  v.  Gray,  16  Wall.  203  (218);  Naumburg  v.  Hyatt,  24 
Fed.  898;  Thompson  v.  Scott,  4  Dill.  508.  But  see  also  25  Stat,  at  L., 
chap.  866,  Sec.  3,  p.  436;  24  Stat,  at  L.,  chap.  373,  Sec.  3,  p.  554,  and 
for  cases  involving  a  construction  of  this  act,  see  Missouri  Pac.  Ry. 
Co.  v.  Texas  Pac.  Ry.  Co.,  41  Fed.  310  (314);  Central  Trust  Co.  v.  St. 
Louis,  etc.,  Ry.  Co.,  41  Fed.  551;  Atkins  v.  Wabash  Ry.  Co.,  41  Fed. 
193  (194);  Pine  Lake  Iron  Co.  v.  LaFayette  Car  Works,  53  Fed.  853. 
As  to  torts.  See  McNulta  v.  Lockridge,  142  U.  S.  1.  Now,  see  Judicial 
Code,  Sec.  66  and  Colonial  Trust  Co.  v.  Pacific,  etc.,  Co.,  142  Fed. 
298;  Nashville  Co.  v.  Bunn,  168  Fed.  862;  Foster's  Fed.  Prac,  5th  ed.. 
Sec.  314.  Also  see  Buckhannon,  etc.,  Ry.  Co.  v.  Davis,  135  Fed.  707, 
68  C.  C.  A.  345;  Wilcox  v.  Jones,  177  Fed.  870,  101  C.  C.  A.  84;  Central 
Trust  Co.  v.  Wheeling,  etc.,  Ry.  Co.,  189  Fed.  82;  Investment  Registry 
V.  Chicago,  etc.,  Electric  R.  Co.,  204  Fed.  5(X). 

Mortgagees  without  leave  of  court  may  not  proceed  in  foreclosure, 
and  injunction  will  issue  to  prevent  it.  Slade  v.  Mass.  Coal  Co., 
188  Fed.  369. 


No.  859. 

Order  Granting  Leave  to  Make  the  Receiver  Party  to  Suit  in 

State  Court. 

[Caption.] 

The  petition  of  C.  L.,  for  leave  to  make  S.  M.,  receiver  in 
this  cause,  party  defendant  in  an  action  now  pending  in  the 

superior  court  of ,  numbered  on  the  docket  of  said 

court,  wherein  said  C.  L.  is  plaintiff  and  the  C.  &  D.  Railway 


RECEIVERS ORIGINAL   PROCEEDINGS.  1281 

Company  is  defendant,  having  been  presented  and  considered 
by  the  court,  it  is  now  ordered  that  the  prayer  of  said  peti- 
tion be  granted,  and  that  C.  L.  be  permitted  to  cause  said 
S.  M.,  the  receiver  heretofore  appointed  in  this  suit,  to  be 
made  a  party  defendant  in  said  cause  pending  in  the  superior 

court  of  ,  and  that  said  S.  M.,  receiver,  submit  himself 

fully  to  such  orders  as  may  be  made  by  said  superior  court 

of in  an  action  now  pending  therein.  J.  S., 

United  States  District  Judge. 

No.  800. 

Petition  for  Leave  to  Garnishee  Receiver. 

The   District   Court   of  the  United   States,   District   of 


A.  B.. 

vs. 
C.  &  D.  R.  R.  Co. 

Intervening  petition  of  the  Fidelity  Trust  Company  and 
the  Brick  Company. 

Petitioners   respectfully   show   to    the   court   that    they   are 

corporations  duly  chartered  by  the  laws  of  the  state  of  

and  that  they  have  brought  suit  in  the  circuit  court  in 

said  state  wherein  they  seek  to  recover  from  the  Newport 
Valley  Company  the  sum  of  dollars  for  breach  of  con- 
tract, and  in  said  suit  they  have  given  bond  with  good  surety 

in  the  sum  of  thousand  dollars,   and  have  obtained  a 

general  attachment  against  the  said  Newport  Valley  Com- 
pany. 

Petitioners  further  show  that  by  an  order  heretofore  en- 
tered in  this  cause  the  receivers  have  been  ordered  to  pay  to 
the  said  Newport  Valley  Company  a  large  sum  of  money  and 
that,  being  unable  to  find  other  assets  of  said  company  in 
this  state,  they  are  desirous  of  levying  their  attachment  upon 
the  sum  so  ordered  to  be  paid,  by  serving  the  said  writ  of 
attachment  upon  the  receivers  as  garnishees. 

Wherefore  they  pray  the  court  to  make  such  o^der  as  may 
be  proper  and  equitable  in  the  premises. 

R.  X.,  for  Petitioners. 


1282  SUITS    IN    EQUITY. 

No.  861. 

Order  on  Foregoing  Petition. 
The  District  Court   of  the  United    States,  District   of 


A.  B. 

vs. 
C.  &  D.  R.  Co. 

Came  the  Fidelity  Trust  Company  and  the  Brick  Company 
and  presented  their  petition,  asking  leave  to  serve  upon  the 

receivers,  as  garnishees,  a  writ  of  attachment  from  the  

district  court,   in  the  state  of  ,   in  a  suit  wherein   said 

companies  are  plaintififs  and  the  Newport  Valley  Company 
is  defendant;  and  the  matter  having  been  heard  it  is  consid- 
ered by  the  court  that  petition  be  filed  and  that  the  petitioners 
have  leave  to  have  said  writ  served  upon  the  receivers. 

It  is  further  ordered  that  after  such  service  proceedings  to 
enforce  the  attachment  against  said  receivers  sliall  not  be 
prosecuted  in  the  district  court,  but  the  claim  of  peti- 
tioners may  be  presented  and  prosecuted  in  this  suit  if  peti- 
tioner shall  obtain  a  judgment  in  the  said  state  court  against 
the  said  Newport  Valley  Company. 


No.  862. 

Intervening  Petition  for  Materials  Furnished  Railway  Com- 
pany Claiming  Preference.  ( 1 ) 

The  District  Court  of  the  United  States  for  the  Dis- 
trict of  : 

A.  B. 
vs. 

C.  &  D.  Ry.  Co. 

To  the  Judge  of  the  District  Court  of  the  United  States  for 

the District  of : 

Your  petitioner,  the  E.  F.  Co.,  by  leave  of  the  court,  files 

this  his  intervening  petition  in  the  above  entitled  cause  and 

states : 


RECEIVERS ORIGINAL    PROCEEDINGS.  1283 

That  your  petitioner  is  a  corporation  organized  under  the 

laws  of  the  state  of with  its  principal  office  in  the  city 

of  ,  and  respectfully  shows  unto  your  honors  that  the 

bill  in  this  cause  was  filed  by  the  said  A.  B.  in  behalf  of  him- 
self and  of  other  creditors  of  the  C.  &  D.  Railway  Company 
against  said  C.  &  D.  Railway  Company,  alleging  among 
other  things  that  the  said  railway  company  was  insolvent 
and  asking  for  the  appointment  of  a  receiver,  which  said  bill 
has  been  sustained  as  a  creditors'  bill,  and  S.  M.  and  H.  C. 
have  been,  under  the  orders  of  this  honorable  court,  in  this 
cause,  appointed  receivers  of  said  railway,  and  said  receivers 
are  now  operating  and  running  said  line  of  railroad  under 
the  orders  of  this  honorable  court  in  this  cause. 

Your  petitioner  further  states  that  it  is  a  manufacturer  and 
dealer  in  different  sorts  of  hardware  and  other  material  nec- 
essarily used  in  the  operation  and  running  of  railroads,  and 

petitioner  further  shows  that  during  the  months  of and 

in  the  year the  above  named  defendant,  the  C.  & 

D.  Railway  Company,  purchased  of  your  petitioner  and  your 
petitioner  furnished  and  delivered  to  said  railway  company, 
different  sorts  of  materials,  and  at  the  fair  and  reasonable 
price  mentioned  and  set  forth  in  the  sworn  statement  here- 
with filed  and  marked  Exhibit  "  A  "  to  this  petition  and  made 
a  part  of  the  same  and  thus  your  petitioner  avers  that  said 
railway  company  became  and  is  indebted  unto  your  petitioner 

in  the  sum  of  $ for  the  aforesaid  materials  which  were 

used  in  equipping,  operating  and  repairing  said  railroad  and 
its  rolling  stock  and  other  property  and  was  necessary  for 
such  purposes. 

Said  materials  were  furnished  and  delivered  by  your  peti- 
tioner to  the  said  railway  company  in  the  months  of  

and  ,  w^hich  was  within  six  months  prior  to  the  

day  of .  and  for  this  reason  petitioner  comes  within  the 

provisions  and  benefits  of  the  order  appointing  said  receiver, 
and  is  entitled  to  have  payment  in  full  of  its  said  claim.     Pe- 


1284  SUITS    IN    EQUITY. 

titioner  has  often  demanded  payment  of  the  said  amount  and 
the  payment  has  been  refused  and  is  still  due  and  unpaid. 

Wherefore    your    petitioner    prays    for    a    decree    for    the 

amount  of  said  debt,  to  wit,  $ and  interest,  and  that  the 

same  may  be  directed  to  be  paid  by  the  receivers  out  of  the 
funds  now  in  their  hands  or  out  of  the  first  moneys  that  come 
into  their  hands.     It  prays  for  general  relief. 

X.  &  X., 
Solicitors   for  Petitioner. 

[Verification.'] 

[Attach  itemized  statement  of  account  under  oath,  as  "  Ex- 
hibit A."] 

(i)  The  well  settled  doctrine  that  the  "current  earnings"  of  a  mort- 
gaged railroad  are  applicable  primarily  to  the  payment  of  the  current 
debts  made  in  the  course  of  the  ordinary  operation  of  the  railroad,  arises 
partly  out  of  the  public  interest  in  the  maintenance  of  such  a  highway 
for  the  public  use,  and  partly  out  of  the  necessity  for  such  expenditures 
for  the  preservation  of  the  property  for  the  benefit  of  those  having  liens 
thereon.  The  peculiar  character  of  the  property  and  the  public  character 
of  its  use  have  led  to  the  conclusion  that  "  every  railroad  mortgagee,  in 
accepting  his  security,  impliedly  agrees  that  the  current  debts  made  in 
the  ordinary  course  of  business  shall  be  paid  from  the  current  receipts 
before  he  has  any  claim  upon  the  income."  Fosdick  vs.  Schall,  99  U.  S. 
23s.  252;  Miltenberger  vs.  Railroad  Co.,  106  U.  S.  286,  311,  312,  i  Sup. 
Ct.  140;  Burnham  vs.  Bowen,  iii  U.  S.  776,  4  Sup.  Ct.  675;  Virginia 
&  A.  Coal  Co.  vs.  Central  Railroad  &  Banking  Co.,  170  U.  S.  •355,  365, 
369,  18  Sup.  Ct.  657;  Southern  Ry.  Co.  vs.  Carnegie  Steel  Co.,  176  U.  S.  257. 

The  equity  in  favor  of  such  claims  grows  out  of  the  fact  that  they 
are  debts  incurred  during  the  current  operation  of  the  railroad,  and 
for  necessary  labor  or  supplies  to  maintain  it  in  operation,  and  under 
circumstances  which  support  the  presumption  that  the  expectation  was 
that  they  would  be  paid  out  of  the  current  income.  If  credit  is  given 
by  agreement  upon  such  claims  for  a  time  which  indicates  that  there 
was  no  expectation  that  the  current  earnings  were  to  be  applied  in 
their  payment,  or  they  are  allowed  to  stand  unsettled,  and  without 
suit,  for  such  a  time  as  indicates  that  the  creditor  has  ceased  to  look 
to  current  earnings,  he  will  be  regarded  as  a  simple  unsecured  creditor, 
relying  alone  upon  the  general  credit  of  the  company,  and  not  upon 
the  interposition  of  a  court  of  equity.  There  is  no  fixed  time  limit  upon 
these  preferential  claims,  but  six  months  is  now  generally  fixed  by  order 
of  court.     See  discussion  of  this  subject  and  cases  cited  in  Central  Trust 


RECEIVERS ORIGINAL   PROCEEDINGS.  1285 

Co.  V.  East  Tenn.  V.  &  G.  R.  Co..  26  C.  C.  A.  30.  80  Fed.  624;  and 
Farmers  Loan  &  Trust  Co.  v.  R,  R.  Co.,  53  Fed.  187. 

The  courts  have  allowed  as  preferences  payable  out  of  the  current 
earnings,  claims  for  hardware  and  supplies  to  the  machinery  depart- 
ment of  a  railroad.  Hale  v.  Frost,  99  U.  S.  389;  Gregg  v.  Mercantile 
Trust  Co.,  109  Fed.  220.  For  rails  used  for  repairs.  Southern  Ry.  Co. 
V.  Carnegie  Steel  Co..  176  U.  S.  257.  For  coal  for  engines.  Burnham  v. 
Bowen,  111  U.  S.  776.  For  cross  ties  to  replace  ties  decayed.  Gregg  v. 
Mercantile  Trust  Co.,  109  Fed.  220.  Current  traffic  balances.  Gregg  v. 
Mercantile  Trust  Co.,  109  Fed.  220. 

The  courts  have  declined  to  allow  as  preferences  payable  out  of  the 
current  earnings  claims  for  repairs  which  are  so  extensive  as  to  amount 
to  reconstruction  or  the  construction  of  new  road,  as  rails.  Lacka- 
wanna R.  R.  Co.  V.  Trust  Co.,  176  U.  S.  298.  Or  a  new  dock.  R.  R. 
Co.  V.  Hamilton,  134  U.  S.  296.  Or  for  car  rentals.  Thomas  v.  Car 
Co.,  149  U.  S.  95;  Fosdick  v.  Schall,  99  U.  S.  235;  Kneeland  v.  Trust 
Co.,  136  U.  S.  89.  Or  for  new  locomotives.  Rhode  Island  Locomotive 
Works  V.  Continental  Trust  Co.,  108  Fed.  5.  Or  for  money  borrowed 
to  pay  interest  on  matured  mortgage  coupons.  Morgan's  Co.  v.  Texas 
Central  R.  Co.,  137  U.  S.  171.  Or  claims  for  legal  services  rendered 
a  railroad  company.  Gregg  v.  Mercantile  Trust  Co.,  109  Fed.  220; 
R.  R.  Co.  v.  Wilson,  138  U.  S.  501,  34  L.  Ed.  1023.  Or  for  rentals  under 
a  lease  for  a  track  and  terminal  facilities.  L  &  N.  R.  R.  Co.  v.  Central 
Trust  Co.,  31  C.  C.  A.  89,  87  Fed.  500;  Foster's  Fed.  Prac,  5th  ed., 
Sees.  301  to  325. 


No.  863. 

Intervening  Petition  for  Materials  Furnished  R.R.,  Claiming 
Preference  Over  Mortgagee.  (1) 

The  District   Court   of  the  United   States,  District   of 


The  A.  B.  Trust  Company,  Trustee, 

Complainant,                                                 In  Equity. 
vs.                                    > 
The    C.    &    D.    Railroad    Company,         No. . 

Defendant. 
To  the  Judge   of  the  District  Court   of   the   United   States, 
District  of  : 

Your  petitioner,  S.  G.,  by  leave  of  the  court,  files  this  his 
intervening  petition  in  the  above  entitled  cause  and  states : 

First.     That  by  order  of  the  court  heretofore  made  herein, 
on  the  day  of  ,   S.   M.   was  duly  appointed   and 


1286  SUITS    IN    EQUITY. 

thereafter  qualified  as  receiver  of  the  C.  &  D.  Railroad  Com- 
pany, defendant  herein; 

That  in  said  order  appointing  said  receiver,  said  receiver 
vv^as,  among-  other  things,  directed  ta  pay  the  employes,  ot- 
ficials  and  other  persons  having  claims  for  wages,  materials 
and  supplies  due,  and  tO'  become  due,  and  unpaid,  growing 
out  of  the  operation  of  the  railroad  of  the  defendant,  includ- 
ing current  and  unpaid  vouchers;  to  settle  accounts  incurred 
in  the  operation  of  the  defendant  company;  to  pay  any  and 
all  obligations  accrued  or  accruing  upon  any  equipment  trust 
made  by  the  defendant  railroad  company,  and  providing  that 
said  receiver  should  pay  no  claims  against  the  said  railroad 
company  which  had  accrued  due  more  than  six  months  prior 
to  the  date  of  said  order. 

Second.  Your  petitioner  further  states  that,  as  he  is  in- 
formed arrd  believes,  in  pursuance  of  the  several  orders  of 
the  court,  the  said  receiver  has  borrowed  money  and  issued 
receiver's  certificates  and  applied  the  same  as  ordered  and 
directed  by  the  court  and  as  a  result  thereof  has,  up  to  this 
time,  except  in  meeting  the  obligations  of  the  pay  rolls  and 
and  any  and  all  obligations  upon  .he  equipment  trusts  made 
by  the  defendant  railroad  company  and  except  as  hereinafter 
stated,  been  unable  to  pay  the  employes,  officials  and  other 
persons  having  claims  for  wages,  services,  materials  and  sup- 
plies at  the  time  of  the  appointment  of  said  receiver  due,  and 
to  become  due,  and  unpaid,  growing  out  of  the  operation  of 
the  railroad  of  the  defendant,  including  current  and  unpaid 

vouchers,  in  pursuance  of  said  order  of  June ,  and  which 

accrued  due  less  than  six  months  prior  to  the  date  of  said  or- 
der of  June ,  and  that  the  claim  of  your  petitioner,  here- 
inafter set  forth,  being  a  claim  for  materials  and  supplies 
which  accrued  due  less  than  six  months  prior  to  the  date  o^ 
said  order  last  mentioned  and  which  said  receiver  was,  by  the 
terms  of  said  order  as  aforesaid,  authorized  and  directed  to 
pay  as  aforesaid,  still  remains  due  and  unpaid. 


RECEIVERS ORIGINAL    PROCEEDINGS.  12S~ 

Third.  Your  petitioner  further  states  that  large  sums  oi 
money,  which  should  have  been  used  in  paying  and  discharg- 
ing the  operating  expenses  of  said  road  and  for  materials 
used  in  said  operations,  which,  in  equity,  are  first  charges 
upon  the  property  of  said  railroad,  have  been  diverted  by 
said  railroad  company  and  its  officers  and  agents  operating  it, 
from  such  purposes,  and  have  been  used  in  making  perma- 
nent improvements  upon  the  roadbed  and  other  properties  of 
said  railway  company,  thereby  greatly  enhancing  the  secu- 
rity of  its  mortgage  and  bond  creditors,  and  so  your  petition- 
er states  that  said  claim  has  prior  right  of  satisfaction  over 
any  such  creditor  by  mortgage  or  bond,      (i.) 

Fourth.  Your  petitioner  further  states  that  in  pursuance 
of  a  contract  duly  made  with  the  said  C.  &  D.  Railroad  Com- 
pany, on  to  wit,  the day  of  ,  your  said  petitioner 

sold  and  delivered  in  the  months  of  and  on  the  

day  of  ,  as  to  a  part  thereof,  after  the  appointment  of 

the  said  receiver  under  said  order  of  June  ,  to  the  said 

C.  &  D.  Railroad  Company  and  said  receiver  certain  rail- 
road materials  and  supplies,  to  wit,  railroad  ties,  the  claim 
for  which  was  one  necessarily  incurred  and  growing  out  of 
the  operation  and  maintenance  of  the  said  railroad  by  the 
said  defendant  company  and  said  receiver  to  the  nuinber  and 
at  the  prices  set  forth  in  the  account  attached  hereto  and  made 
a  part  hereof  marked  Exhibit  "  A  "  which  said  account,  in 
accordance  with  said  contract,  became  due  and  payable  to 
your  said  petitioner  from  said  defendant  railroad  company 

and  said  receiver  on  the day  of  ,  and  which  said 

account  aggregates  the  sum  of  $ ,  upon  which  there  is  now 

due  and  payable  the  said  sum  of  $ ,  with  interest  at  6 

per  cent,  from  the day  of .     [Set  out  the  other  notes 

in  like  manner.'] 

That  said  account  was  duly  presented  tO'  the 'said  receiver 
as  a  claim  against  said  receiver  in  said  amount  and  as  such 

allowed  by  said  receiver  for  said  sum  of  $ for  material 

furnished  by  your  petitioner  to  said  company  and  as  a  claim 


'288  SUITS    IN    EQUITY. 

which  accrued  due  within  six  months  prior  to  the  appointment 
of  said  receiver  of  said  company  a  copy  of  which  said  al- 
lowance is  hereto  attached  and  made  a  part  hereof,  marked 
Exhibit  "  B." 

Your  petitioner  further  says  that  although  a  part  of  said 
ties  were  delivered  to  said  defendant  railroad  company  prior 
to  the  appointment  of  said  receiver,  that  he  is  informed  and 
believes  and  therefore  alleges  that  a  large  portion  thereof, 
if  not  all,  were  used  by  said  receiver  after  his  appointment 
as  aforesaid  in  the  maintenance  and  operation  of  said  rail- 
road company  by  him  as  such  receiver. 

Your  petitioner  further  states  that  he  also  holds  as  claims 
against  said  defendant  company  and  said  receiver  certain 
promissory  notes  given  by  said  defendant  railroad  company 
in  payment  for  certain  materials  and  supplies  sold  and  deliv- 
ered to  said  railroad  company  and  payment  for  which  ac- 
crued due  within  six  months  prior  to  the  appointment  of  said 
receiver. 

[First.  One  note  for  $194,96,  dated  Columbus,  Ohio,  May 
12,  1897,  payable  to  the  order  of  your  petitioner  sixty  days 
after  date  at  the  Clinton  National  Bank,  with  interest  at  the 
rate  of  7  per  cent,  per  annum  from  date,  a  copy  of  which 
said  note' is  hereto  attached  and  made  r  ^»art  hereof  and  mark- 
ed Exhibit  "  C."    Set  out  the  other  notes  in  like  manner.^ 

Fifth.  Your  petitioner  further  states  that  the  total  amount 
due  from  said  defendant  railroad  company  and  said  receiver 

on  account  of  the  claims  above  set  forth  is  the  sum  of  $ ; 

with  interest  as  heretofore  stated. 

The  said  receiver  is  unable  to  pay  the  same,  although  ad- 
mitting the  validity  thereof,  out  of  the  net  earnings  of  said 
property  in  his  hands. 

That  as  the  amount  heretofore  authorized  to  be  borrowed, 
or  receiver's  certificates  to  be  issued  therefor,  has  been  used 
and  applied  by  said  receiver  as  heretofore  ordered  by  the 
court,  the  said  receiver  is  not  authorized  to  borrow  further 
sums  of  money  upon  receiver's  certificates  at  this  time  to  pay 


RECEIVERS ORIGINAL    PROCEEDINGS. 


1289 


the  said  claims,  nor  is  he  able  to  carry  out  the  said  order  of 

June  ,  directing  him  to  pay  said  claims,  among  others, 

which  had  accrued  within  six  months  prior  to  his  said  ap- 
pointment. 

That  said  road  has  not  as  yet  been  sold,  nor  as  your  peti- 
tioner is  informed  and  believes  is  there  at  the  present  time 
any  prospect  for  the  immediate  sale  thereof  and  the  payment 
of  said  claims. 

That  said  claims  in  the  form  in  which  they  now  are  can- 
not be  negotiated  by  your  said  petitioner  nor  otherwise  made 
available  to  your  petitioner  and  that  to  compel  your  peti- 
tioner to  further  await  the  sale  of  said  road,  or  the  reorgan- 
ization thereof  by  the  bondholders  and  to  be  deprived  of  the 
money  due  upon  said  claims,  would  work  great  hardships 
upon  your  petitioner. 

That  said  claims  are  a  lien  upon  said  road  prior  to  the 
claims  of  the  complainant  or  defendants  herein  and  are  en- . 
titled  to  rank  with  and  be  paid  equally  with  the  receiver's 
certificates  heretofore  authorized  and  issued  by  said  receiver 
under  the  orders  of  the  court,  as  well  as  the  claims  for  wages, 
services,  obligations  upon  car  trusts  and  other  claims  and  ob- 
ligations which  have  heretofore  been  paid  by  said  receiver 
and  which  to  enable  the  said  receiver  to  pay,  receiver's  cer- 
tificates have  been  authorized  by  the  court  and  issued  by 
said  receiver. 

Wherefore  your  petitioner  prays : 

That  the  said  claims   amounting  to  $ ,   with   interest 

at  the  rate  of  6  per  cent,  per  annum  on  $ from  the 

day  of on  $ at  the  rate  of  7  per  cent,  per  annum, 

from  the  day  of ,  and  on  $ at  the  rate  of  7 

per  cent,  per  annum  from  the day  of ,  may  be  ad- 
judged and  declared  by  the  court  to  be  lawful  and  valid  claims 
for  materials  and  supplies  due  and  unpaid,  growing  out  of 
the  operation  of  the  railroad  of  the  said  defendant  company 
and  which  accrued  due  after  or  within  six  months  prior  to 
the  date  of  the  appointment  of  said  receiver  and  as  such  a 


1290  SUITS    IN    EQUITY. 

lien  upon  said  property  in  the  hands  of  said  receiver  prior 
to  the  claim  of  the  complainant  and  defendants  to  said  orig- 
inal bill  and  of  equal  rank  and  validity  with  the  receiver's 
certificates  heretofore  authorized  and  ordered  to  be  issued 
by  the  said  receiver  and  issued  by  him  herein. 

That  said  receiver  may  be  authorized  and  directed  forth- 
with to  pav  the  same  as  such;  that  if  for  any  reason  the  said 
receiver  has  not  at  the  time  of  making  such  order  sufficient 
funds  on  hand  to  pay  said  claims  that  he  may  be  authorized 
and  directed  to  borrow  money  for  such  purpose  and  to  that 
end  be  authorized  and  directed,  if  necessary,  to  issue  receiver's 
certificates  for  the  purpose  of  procuring  the  necessary  funds 
to  pay  said  claim,  which  said  certificates  shall  be  similar  in 
form  and  of  the  same  tenor,  effect  and  priority  as  those  here- 
tofore authorized  and  ordered  to  be  issued  and  sold,  or  other- 
wise used  bv  said  receiver,  or  that  said  property  of  the  rail- 
road company  may  be  forthwith  sold  without  further  delay 
and  free  from  the  claims  of  all  the  parties  hereto,  and  the 
proceeds  distributed  in  accordance  with  the  priority  of  liens, 
as  may  be  established  by  the  court,  and  for  such  other  and 
further  relief  as  to  the  court  may  seem  just  and  equitable. 

And  your  petitioner  will  ever  pray,  etc. 

S.  G. 
R.  X., 

Solicitors  for  Petitioner. 

State  of  


County  of ,  ss. 

S.  G.,  being  first  duly  sworn,  deposes  and  says:  That  he 
is  the  petitioner  above  named,  that  he  has  read  the  foregoing 
intervening  petition  and  knows  the  contents  thereof;  that  as 
to  the  facts  therein  stated  on  knowledge  the  same  are  true  and 
as  to  those  stated  on  information  and  belief,  he  believes  the 
same  to  be  true. 

And  further  deponent  saith  not.  S.  G. 


RECEIVERS ORIGINAL    PROCEEDINGS. 


1291 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
—  day  of ,  A.  D. .  J.  N., 


[Seal.l  Notary  Public,  County, 

(i)  As  to  diversion:  There  are  cases  where,  owing  to  special  cir- 
cumstances, an  equity  arises  in  favor  of  certain  classes  of  creditors  of  an 
insolvent  railroad  corporation  otherwise  unsecured,  by  which  th^  are 
entitled  to  outrank  in  priority  of  payment,  even  upon  a  distribution  of  the 
proceeds  of  a  sale  of  the  body  of  the  property,  those  who  are  secured 
by  prior  mortgage  liens.  Illustrations  and  instances  of  these  cases  are  to 
be  found  in  Fosdick  vs.  Schall,  99  U.  S.  235,  25  L.  Ed.  339;  Miltenberger 
vs.  Railroad  Co.,  106  U.  S.  286,  i  Sup.  Ct.  140,  27  L.  Ed.  117;  Trust  Co.  vs. 
Souther,  107  U.  S.  591,  2  Sup.  Ct.  295,  27  L.  Ed.  488;  Burnham  vs. 
Bowen,  III  Uo  S.  776,  4  Sup.  Ct.  675,  28  L.  Ed.  596;  Union  Trust  Co.  vs. 
Illinois  M.  R.  Co.,  117  U.  S.  434.  6  Sup.  Ct.  809,  29  L.  Ed.  963;  Dow  vs. 
Railroad  Co.,  124  U.  S.  652,  8  Sup.  Ct.  673,  31  L.  Ed.  565;  Sage  vs. 
Railroad  Co.,  125  U.  S.  361,  8  Sup.  Ct.  887,  31  L.  Ed.  694;  and  Trust 
Co.  vs.  Morrison,  125  U.  S.  591,  8  Sup.  Ct.  1004,  31  L.  Ed.  825. 

"  The  rule  governing  in  all  these  cases  was  stated  by  Chief  Justice  Waite 
in  Burnham  vs.  Bowen,  in  U.  S.  776,  783,  4  Sup.  Ct.  675,  679,  28  L.  Ed. 
596,  599,  as  follows :  '  That,  if  current  earnings  are  used  for  the  benefit 
of  mortgage  creditors  before  current  expenses  are  paid,  the  mortgage 
security  is  chargeable  in  equity  with  the  restoration  of  the  fund  which 
has  been  thus  improperly  applied  to  their  use.' 

"  To  bring  a  claim  within  this  rule  it  is  necessary  to  allege  and  prove 
that  there  has  been  a  diversion  of  the  current  earnings,  either  before 
or  since  the  receivership,  which  the  mortgagees  should  equitably  restore. 
International  Trust  Co.  vs.  T.  B.  Townsend  Brick  &  Contracting  Co.,  :i7 
C.  C.  A.  396,  95  Fed.  850 ;  Central  Trust  Co.  vs.  East  Tennessee,  V.  8c 
G.  R.  Co.,  26  C.  C.  A.  30.  80  Fed.  624;  Virginia  &  A.  Coal  Co.  vs. 
Central  Railroad  &  Banking  Co.,  170  U.  S.  365,  18  Sup.  Ct.  657,  42  L.  Ed. 
To68;  Southern  Ry.  Co  vs.  Carnegie  Steel  Co.,  176  U.  S.  257,  285,  20 
Sup.  Ct.  347,  44  L.  Ed.  458;"  Foster's  Fed.  Prac,  5th  ed..  Sees.  301  to  325. 


No.  864. 

Master's  Report  on  Intervention. 
[Caption.] 

Special  master's  report  in  the  matter  of  the  claim  of  J.  D. 

Bros.  &  Co.  against  the  receivers  of  tlie  C.  &  D.  Railway 

Company. 
To  the  Judges  of  said  Court : 

Under  a  general  order  of  reference,  dated  ,  made  in 

this    cause,    providing    for    the    examination    by   the    special 


]292  SUITS    IN    EQUITY. 

master  commissioner  of  claims  against  the  receivers  ap- 
pointed herein,  to  wit,  S.  M.  and  H.  C,  arising  from  their 
operation   of  the   defendant  railway  company's  property  in 


J.  D.  Bros.  &  Co.,  a  copartnership,  doing  a  general  mer- 
chandise   business  at ,  in  the  county  of ,  state  of 

,  filed  with  me  their  intervening  petition,  complaining 

that  on  the day  of ,  they  shipped  from to , 


in  the  state  of ,  over  the  C.  &  D.  Railway, head 

of  beef  cattle ;   that  while  said  beef  cattle  were  en  route  to 

they  were    injured  and    delayed,  on    said   railway,  to 

interveners'  damage dollars. 

By  consent  of  the  parties  I  appointed  the day  of , 


at ,  to  consider  the  matter.     At  which   time   and  place 

appeared  W.  C,  solicitor  for  the  receivers,  and  W.  B,,  solici- 
tor for  intervenors. 

After  hearing  the  evidence  and  argument  of  counsel,  I  tooV 
the  matter  under  advisement,  and   now  report  my  findings : 

I  find   that  the  receivers  and  intervenors  executed  on  the 

day  of ,  a  certain  live-stock  contract,  whereby  the 

former  engaged  to  transport,  as  common   carriers,  for  hire, 

head  of  beef  cattle,  the  property  of   intervenors,  form 

to  the  National  Stockyards  in  the  city  of . 

I  find  that  in    pursuance    of  this    contract head  of 

beef  steers  were  delivered  on  the  same  day  to  said  re- 
ceivers at ,  and  that  they  were  in  good  condition  and  of 

the  average  weight  of  eight  hundred  and  fifty  pounds  a  head. 

I  find  that  thereafter,  on  the day  of ,  while  a 

train  operated  by  said  receivers  was  transporting  said  cattle 

from to ,  it  was  detained  by  a  wreck   caused  by  a 

derailment  of  one  of  its  cars,  at ,  for  twenty-four  hours. 

I  find  that  said  cattle  were  delivered  on  the day  of 

,  to  the  consignee  at  the  National   Stockyards  in , 

in  bad  condition,  and  greatly  injured  by  the  wreck  and 
delay. 

I  find  that  the  delay  was  unreasonable,  and  not  without 
the  fault  of  the  receivers,  and  that  if  said   delay  had  not 


RECEIVERS ORIGINAL   PROCEEDINGS.  1293 

occurred  the  cattle  would  have  been  delivered  to  the  con- 
signee on  the day  of ,  and  in  good  condition,  and 

that  intervenors  would  have  received  a  better  price  for  them 
than  the  price  offered  and  received  by  intervenors  for  them 
on  the day  of ,  the  same  day  when  they  were  sold. 

I  find  that  the  difference  between  the  value  of  these  cattle 
at  a  fair  valuation  on  these  dates  amounts  to  the  sum  oi 
dollars. 

Premises  considered,  I  am  of  the  opinion  that  intervenors 
are  entitled  to  recover  the  difference  between  the  price  they 

would  have  received  on  the day  of ,  and  the  price 

actually  received  on  the day  of . 

I  therefore  recommend  the  adoption  by  the  court  of  a  de- 
cree to  the  following  effect: 

That  intervenors,  J.  D.  Bros.  &  Co.  have  of  and  from  S. 
M.  and  H.  C,  as  the  receivers  of  the  defendant  railway  com- 
pany, the  sum  of dollars,  actual  damages  ;  the  same  to 

be  decreed  as  a  charge  upon  the  current  income  of  the  re- 
ceivership, and  a  part  of  the  expenses  thereof,  and  all  costs 
in  this  behalf. 

Respectfully  submitted,  E.  M., 

Special  Master  Commissioner  in  Chancery. 


No.  8G5. 

Decree  Confirming  Master  Commissioner's  Report  on 
Intervention. 

\_Capizo)i.'\ 

On  this day  of ,  came  on  to  be  heard  the  excep- 
tions of  intervenor  M.  D.  to  the  report  of  the  special  master 

filed  herein  on  the day  of ,  and  the  same  was  argued 

by  counsel,  where  upon  consideration  thereof,  because  it  is 
the  opinion  of  the  court  that  the  law  is  against  said  exceptions, 
it  is  therefore  ordered,  adjudged,  and  decreed  by  the  court 
that  said  exceptions  be,  and  they  are  hereby  overruled,  and 
the  report  of  said  special  master  is  in  all  things  confirmed. 

A.  P., 
District  Judge. 


1294 


SUITS   IN    EQUITY. 


No.  866. 

Quarterly  Statement  of  Receiver  (i). 

S.  M.,  Receiver,  in  Account  with  C.  &  D.  Railway  Company, 
from  July  i,  i8— ,  to  September  30,  18 — ,  inclusive. 


Receipts. 

'Balance  July  i,  18 — , 
Agents'  remittances. 
Conductors'  remittances, 
Mail  earnings, 
Miscellaneous  earnings 
Express  earnings, 
Ticket  balances,  . 
Mileage  balances. 
Sundry  railroads. 
Sundry  individuals. 
Audited  pay-rolls. 
Total,     . 

Disbursements. 

Audited  vouchers. 
Audited  pay-rolls. 
Audited  claims,    . 
Ticket  balances,   . 
Mileage  balances. 
Sundry  railroads. 
Sundry  individuals. 
Car  trust  notes,     . 
Rental  of  roadway. 
Total,     . 


Accrued  prior  to  appoint- 
ment of  receiver  and  col- 
lected under  receivership. 


Accrued  and  col- 
lected under  re- 
ceivership. 


Accrued  prior  to  appoint- 
ment of  receiver. 


Accrued   undei- 
the  receivership^ 


RECAPITULATION. 
Receipts. 

Balance  July  i,  18 — ,     ....    $ 

Accrued  prior  to  appointment  of 
receiver    and   collected   under 

receivership, 

Accrued  and  collected  under  re- 
ceivership,     


$-- 


Total,  $- 


RECEIVERS ORIGINAL    PROCEEDINGS. 


1295 


Disbursements. 

Accrued  prior  to  appointment  of 

receiver, $ 

Accrued  under  receivership,  .     .    $ Total,  $- 

Balance  September  30,  18 — ,    ....$- 

(i)  As    to    receiver's    accounts    generally,    see    Beach's    Mo<Ie«    '^i. 
Prac,    Sec.    748.     Bates    Fed.    Eq.,    Sec.   600. 


Wo.  867. 
Certificate   of  Special  Master  to   Statement   of  Receiver. 

I,  A.  H.,  special  master,  hereby  certify  that  I  have  exam- 
ined the  accounts  of  S.  M.,  receiver,  and  the  receipts  and 
disbursements  for  the  quarter  ending  September  30,  18 — 
[the  period  covered  by  the  foregoing  statement],  and  that  I 
find  the  same  correct  and  as  shown  in  said  statement. 

Given  under  my  hand  this day  of ,  18 — . 

A.  H., 
Special  Master. 

No.  868. 
Petition  of  Receiver  for  Discharge. 

niie  District  Court  of  the  United   States,  District  of 


The     A.     B.     Trust     Company    In  Equity. 

vs. 
The  C.  &  D.  Railroad  Company.    No.  . 

Petition  of  S.  M.,  receiver  for  order  of  final  settlement  and 
discharge. 

Your  petitioner  shows  to  the  court  that  he  has  fully  ac- 
counted for  all  assets  and  property  that  came  into  his  hands 
as  receiver,  and  prays  for  an  order  of  final  discharge,  and 
also  for  the  release  of  the  sureties  on  his  bond  as  receiver. 

S.  M. 

State  of , 

County  of  ,   ss. 

S.  M.,  being  first  duly  sworn,  says  that  the  allegations  of 
his  foregoing  petition  are  true.  S.  M. 


1296  SUITS    IN    EQUITY. 

Sworn   to  before  me   and   subscribed    in   my   presence   this 

day  of .  J.  N., 

[Seal.]  Notary  Public,  County,  . 


No.  869. 

Order  Accepting  Resignation  of  S.  M.,  Receiver,  and  Appoint- 
ing J.  R.  Receiver. 

This  day  came  S.  M.,  and  tendered  his  resignation  as  re- 
ceiver;   on   consideration    whereof   the    same    is    accepted    to 

take  effect  at  midnight  of  ,  and  it  is  ordered  that  J.  R. 

be  and  he  is  hereby  appointed  receiver  in  the  stead  of  said 
S.  M.,  resigned,  with  authority  aixl  directions  to  carry  out 
in  his,  said  J.  R.'s,  name  as  receiver  all  of  the  orders  of  the 
court  heretofore  entered,  the  same  as  if  said  S.  M.  had  not 
resigned,  and  with  all  the  rights,  powers,  duties  and  author- 
ity which  said  S.  M.  would  have  had  if  he  had  continued  to 
be  receiver,  including  authority  to  prosecute  and  defend  all 
suits  brought  by  or  against  said  S.  M.,  receiver,  and  to  com- 
mence any  suits  which  the  said  S.  M.  might  have  brought. 

The  accounts  of  said  S.  M.,  receiver,  are  ordered,  for  con- 
venience, to  be  closed  as  of 31,  ,  and  all  funds  and 

property  in  his  possession  as  receiver  he  shall  turn  over  on 
,  at  midnight,  to  said  J.  R.  as  his  successor. 

Said  J.  R.  is  ordered  to  execute  a  bond  as  receiver,  with 
surety  duly  approved  as  to  form  and  sufficiency  by  this  court, 
or  a  judge  thereof,  in  the  sum  of  one  hundred  thousand 
dollars,  conditioned  upon  the  faithful  discharge  of  his  duties 
as  receiver. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1297 

No.  870. 

Order  Discharging  Receiver.  (1) 

[Caption.] 

It  appearing  to  the  court  that  S.  M.,  Esq.,  receiver  herein, 
filed  his  account  of  receipts  and  disbursements  for  the  month 

of  ,  on  ,  and  his  final  account  for  ,  on  — — , 

covering   the   period   to   ,   on    which    dates   the    receiver 

ceased  operating  said  road ; 

And  it  further  appearing  that  the  Special  Master,  appoint- 
ed to  audit  said  accounts,  has  filed  his  report  thereon  on . 

finding,  among  other  things,  that  said  accounts  are  true  and 
correct,  that  said  receiver  has  turned  over  to  the  C.  &  D. 
Railroad  Company  all  the  property  of  every  kind  and  descrip- 
tion which  came  into  his  hands  as  receiver  herein;  and  recom- 
mending that  said  accounts  be  approved  and  said  receiver 
discharged ; 

And  it  further  appearing  from  the  receipt  of  said  C.  &  D. 
Railroad  Company  (a  copy  of  which  is  attached  hereto  and 
ordered  spread  upon  the  journal),  that  said  receiver  has 
.turned  over  to  said  company  the  cash  and  accounts,  amount- 
ing to  $ ,  and  said  company  has  assurned  the  liabilities 

of  said  receiver,  amounting  to  ,  all  as  audited  to  ; 

And  it  further  appearing  that  no  exceptions  have  been  filed 
to  said  Special  Master's  report  within  thirty  days  after  the 
same  was  filed; 

It  is  therefore  ordered  that  said  report  of  the  Special 
Master  and  the  accounts  of  S.  M.,  receiver  herein,  be  and  the 
same  are  hereby  approved  and  confirmed  in  all  respects,  and 
said  Special  Master,  J.  N.,  Esq.,  is  hereby  allowed  the  sum 
of  $50  for  his  services  as  Special,  Master,  payable  out  of  the 
funds  in  the  court's  registry  to  the  credit  of  this  cause,  or 
if  there  are  no  such  funds,  by  the  said  C.  &  D.  Railroad  Com- 
pany. 


1298  SUITS  IN   EQUITY. 

The  court  further  finds  that  said  S.  M.,  receiver,  has  faith- 
fully discharged  the  duties  of  his  office,  and  obeyed  in  all 
respects  the  orders  of  this  court,  and  his  acts  as  receiver 
herein  are  hereby  approved  and  confirmed ;  and  there  being 
no  cause  why  said  receiver  should  not  be  finally  discharged, 

It  is,  therefore,  ordered,  adjudged  and  decreed  that  said 
S.  M.,  as  received  in  this  cause,  be,  and  he  is,  hereby  dis- 
charged from  further  duties  herein;  and  the  sureties  on  his 
official  bond,  as  receiver,  are  hereby  released  and  discharged. 

(1)  As  to  discharging  receivers.    See  Bates'  Fed.  Eq.,  Sec.  61d 


No.  871. 
Order  Discharging  Receiver  (Another  Form). 

[Caption.] 

In  this  cause  upon  application  of  the  Southern  Railway 
Company  the  purchaser  of  the  property  of  the  C.  &  D.  R. 
R.  Co.,  sold  under  decrees  of  the  court  herein  and  the  other 
parties  hereto  for  an  order  discharging  E.  F.  &  G.  P.,  receiv- 
ers heretofore  appointed  herein  upon  consideration  of  which 
it  is  ordered  and  decreed  that  upyon  the  execution  of  the  decree 
confirming  the  report  of  the  sale  made  herein  by  the  Special 

Master  on  February ,  and  the  surrender  by  them  of  the 

possession  of  said  properties  to  the  purchasers  by  said  receiv- 
ers as  directed  therein,  said  receivers  shall  be  discharged  from 
further  responsibilities  herein  and  their  bonds  as  such  shall 
be  surrendered  and  collected.  The  Southern  Railway  Com- 
pany hereby  waiving  an  accounting  by  said  receivers.  The 
The  Southern  Railway  CoiVipany  having  entered  its  appear- 
ance herein  and  assented  thereto,  is  hereby  substituted  in  the 
room  and  stead  of  said  receivers  and  is  substituted  in  their 
room  and  stead  in  respect  of  any  and  all  liabilities  outstanding 


RECEIVERS ORIGINAL   PROCEEDINGS.  1299 

or  against  said  receivers  growing  out  of  their  receivership 
herein  or  against  said  C.  &  D.  R.  R.  Co.,  or  the  proceeds  of 
sale  herein  claiming  priority  of  payment  over  the  mortgage 
foreclosed  herein  with  leave  to  resist  the  payment  of  any  such 
claim,  and  of  appealing  from  any  order  entered  in  relation 
thereto. 


No.  872. 
Order  Allowing  Account  and  Discharging  Receiver. 

[Caption.] 

The  final  account  and  the  thirty-four  current  accounts  of 
the  receiver  herein  having  been  filed  and  presented  for  allow- 
ance and  having  been  examined  and  found  to  be  correct,  the 
same  are  hereby  approved  and  confirmed ;  and  the  said  receiver 
is  discharged  of  his  trust  herein. 

Ifr  is  further  ordered  that  in  the  event  that  claims  should 
hereafter  be  presented  for  indebtedness  or  costs  incurred, 
which  would  properly  be  .chargeable  against  said  receiver, 
such  obligations  be  paid  by  The  Superior  Portland  Cement 
Company  out  of  the  cash  sum  of  $3,117.09  paid  by  the  receiver 
to  said  company,  or  out  of  the  proceeds  of  the  $3,000  of  bonds 
of  the  Miama  Hotel  Company  of  Dayton,  heretofore  trans- 
ferred by  said  receiver  to  said  company. 

X.  R.,  Judge. 


1300  SUITS   IN    EQUITY. 

No.  873. 

Order  Discharging  Railway  Receivers  and  Restoring 

Property. 

[^Captzon^ 

A  decree  having  been  entered  in  this  suit  upon  the 


day  of  ,  wherein    and    whereby    it    was,  among   other 

things,  ordered,  adjudged,  and  decreed  that  the  C.  &  D.  Rail- 
wav  Company  should,  on  or  before  the  expiration  of  thirty 
days  from  the  date  of  the  said  decree,  pay  into  this  court,  or 
into  the  hands  of  a  depository  to  be  named  by  this  court,  to 
the  credit  of  this  suit,  for  the  use  and  benefit  of  the  holders 
of  the  bonds  and  unpaid  coupons  secured  by  the  mortgage 
of  December  i,  i8 — ,  and  the  several  mortgages  and  the  cer- 
tain indenture  supplemental  thereto,  the  sum  of dollars, 

together  with  the  amount  of  interest  accrued  or  to  accrue  on 
the  said  bonds  from  the  ist  of  December,  i8 — ,  to  the  time 
of  such  payment,  and  also  a  sum  of  money  sufficient,  in  ad- 
dition, to  defray  the  costs  of  this  action. 

On  reading  and  filing  a  satisfaction  piece,  dated  the  

day  of ,  duly  executed,  acknowledged,  and  delivered  by 

the  A.  B.  Company,  of  the  three  certain  indentures  of  mort- 
gage, dated  respectively  December  i,  1880,  December  i, 
1886,  and  December  i,  1887,  and  a  certain  other  satisfaction 
piece,  dated  the  14th  day  of  October,  1890,  duly  executed, 
acknowledged,  and  delivered  by  the  A.  B.  Company,  of  a  cer- 
tain indenture,  dated  March  i,  1882,  being  the  same  mort- 
gages and  the  indenture  referred  to  and  described  in  the  bill 
of  complaint  herein,  by  which  satisfaction  pieces  the  A.  B. 
Company  certifies  that  the  three  mortgages  and  the  certain 
indenture  as  aforesaid,  and  the  bonds  secured  by  the  same, 
are  paid  and  satisfied,  and  consents  that  the  said  mortgages 
and  the  said  indenture  be  discharged  of  record. 

And  on  reading  and  filing  a  stipulation,  dated  ,  and 

signed  by  the  counsel  for  all  parties  to  this  suit,  by  which  it 
appears  that  all  of  the  bonds  secured  by  the  said  mortgages 
and  by  the  said  indenture,  and  of  all  the  interest  due  thereon. 


RECEIVERS ORIGIN  AT.    PROCEEDINGS.  1301 

have  been  paid  by  the  C.  &  D.  Railway  Company  to  the  A. 
B.  Company,  trustee;  and  by  which  it  further  appears  that 
the  C.  &  D.  Railway  Company  has  also  paid  and  discharged 
all  the  other  sums  of  money  which  by  the  said  decree  it  was 
required  to  pay;  and  by  which  stipulation  it  is  also  con- 
sented that  a  proper  order,  satisfying  and  discharging  the 

said  decree  of  the day  of ,  may  be  entered  in  this 

suit. 

And  on  reading  and  filing  the   petition  of  the   C.  &  D. 

Railway   Company,  verified  the  day  of ,  praying 

that  the  receivers  of  the  railway  and  property  of  the  peti- 
tioner be  upon  the day  of discharged,  and  the  said 

railway  and  property  restored  to  the  petitioner. 

And   on  reading  and   filing  the  report  of  the  receivers, 

Messrs.  S.  M.  and  H.  C,  verified  on  the  day  of  , 

showing,  among  other  things,  the  total  amount  of  their  re- 
ceipts and  disbursements,  substantially,  to  the  date  of  the 
hearing  upon  the  motion  for  the  entry  of  this  decree,  con- 
taining also  a  statement  of  suits  now  pending  against  them 
as  receivers,  or  against  the  C.  D.  Railway  Company  and  any 
of  its  ancillary  companies,  and  of  all  claims  filed  against  or 
presented  to  said  receivers,  or  said  railway  company,  so  far 
as  they  have  come  to  the  knowledge  of  the  said  receivers, 
and  a  general  statement  of  the  outstanding  liabilities  of  the 
said  receivers,  growing  out  of  the  possession,  operation,  and 
management  of  the  property  of  the  C.  &  D.  Railway  Com- 
pany by  said  receivers. 

And  Messrs.  S.  M.  and  H.  C,  receivers  of  all  of  the  said 
property,  appearing  by  R.  Z.,  Esq.,  their  solicitor,  and  the 
matters  and  things  hereinbefore  suggested  being  submitted 
to  the  court,  and  the  court  being  advised. 

Now,  on  motion  of  R.  X.,  Esq.,  of  counsel  for  the  peti- 
tioner, the  C.  &  D.  Railway  Company, 

It  is  hereby  ordered,  adjudged,  and  decreed  as  follows: 

First.     That  the  said  decree  of  the day  of ,  is,  in 

all  respects,  satisfied  and   discharged,  in  so  far  as   the  same 


1302  SUITS    TN    EQUITY. 

requires  the  payment  by  the  C.  &  D.  Railway  Company  of 
any  sums  of  money.  This  cause,  however,  being  retained  as 
and  for  the  purposes  hereinafter  provided. 

Second.  .That  the  C.  &  D,  Railway  Company  has  duly 
and  fully  paid  to  the  A.  B.  Company,  trustee,  all  the  sums 
of  money  which  by  the  said  decree,  were  directed  to  be  paid  ; 
the  said  payments  amounting  to  the  sum  of dollars,  to- 
gether with  the  amount  of  interest  accrued  upon  the  said 
sum  from  the  ist  day  of  December,  i8 — ,  to  the  date  of  the 
payment  thereof;  and  the  said  railway  company  has  also 
duly  and  fully  paid  to  the  said  A.  B.  Company,  trustee,  and 
to  its  counsel,  in  full,  all  its  and  their  reasonable  commis- 
sion, charges,  fees,  and  disbursements  in  the  execution  of  the 
trust,  and  in  the  prosecution  of  the  litigation  herein,  which 
said  several  sums  and  amounts  have,  by  it  and  them  been 
accepted  by  them  in  full  for  its  and  their  services  rendered 
herein,  and  the  said  railway  company  has  also  duly  and  fully 
paid  all  costs  and  allowances  which  by  the  said  decree  were 
directed  to  be  paid. 

Third.     That   on    the day    of ,  at    the    hour  of 

noon  that  day,  Messrs.  S.  M.  and  H.  C,  as  receivers,  are 
hereby  ordered  and  directed  to  deliver  to  the  C.  &  D.  Rail- 
way Company  all  the  railroads  and  other  property  of  the  said 
C.  &  D.  Railway  Company,  the  D.  &  W.  Railway  Company, 
etc.  \^iame  all  the  railways  included  in  this  order\  wheresoever 
situated,  whereof  they  took  possession  as  receivers,  under  and 
pursuant  to  the  orders  of  this  court,  and  under  and  pursuant  to 
the  orders  in  causes  ancillary  hereto,  and  which  shall  then  re- 
main in  their  possession  or  under  their  control,  togetlier  with 
all  the  assets  of  every  name  and  nature,  funds,  books  and  ac- 
counts, papers  and  vouchers  in  their  possession,  or  undei 
their  control  as  receivers ;  and  the  said  receivers  shall,  con- 
temporaneously with  the  delivery  of  the  said  railroads  and 
property,  assign  and  transfer  to  the  C.  &  D.  Railway  Com- 
pany all  the  assets,  uncollected  accounts,  and  choses  in 
action  of  the  said  C.  &  D.  Railway  Company,  or  of  either  of 


RECEIVERS ORIGINAL    PROCEEDINGS.  1303 

the  before-mentioned  railway  companies  remaining  in  their 
hands,  and  which  have  accrued  to  them  as  such  receivers 
from  the  possession  and  operation  of  said  lines  of  railway  or 
of  any  of  them;  and  the  said  C.  &  D.  Railway  Company,  on 

the  day  and  at  the  hour  aforesaid,  to  wit,  upon  the day 

of  ,  at  the  hour  of  noon  of  that  day,  shall  receive  and 

take  possession  of  all  the  railroads  and  other  properties,  real, 
personal,  and  mixed,  and  of  all  the  funds  and  assets, 
books  and  accounts,  papers  and  vouchers,  claims,  demands 
and  choses  in  action  in  the  hands  of  S.  M.  'and  H.  C.  afore- 
said, receivers  of  the  C.  &  D.  Railway,  heretofore  appointed 
and  now  acting  under  orders  made  in  this  cause  and  in  the 
ancillary  causes  between  the  same  parties  pending  in  the  dis- 
trict courts  of  the  United  States  for  [here  name  all  the  courts 
wherein  ancillary  proceedings  have  been  had'\  ;  and  upon  such 
transfer,  assignment,  and  delivery  of  the  property  aforesaid 
by  the  receivers  to  the  railway  company,  the  property  of  the 
said  C.  &  D.  Railway  Company  and  of  the  other  companies 
heretofore  mentioned  shall  become  liable  for  all  claims  and 
demands  accrued,  accruing,  or  to  accrue  against  said  receiv- 
ers, arising  out  of  their  possession  and  operation  of  the  said 
railroads  and  property  which  are  and  have  been  in  their 
hands  or  under  their  control  as  receivers,  including  all 
claims  or  demands  against  them  arising  out  of  their  opera- 
tion of  the  E.  &  F.  Railroad,  which  has  heretofore  been  sur- 
rendered under  orders  made  in  this  cause  and  in  the  ancillary 
cause  pending  in  the  district  court  of  the  United  States  for  the 

district  of at ,  and  also  all  claims  and  demands 

existing  against  said  receivers  under  their  receivership  by 
order    of    appointment    made    in    the    cause    pending    in    the 

district  court  of  the  United   States  for  the  district  of 

at ,  wherein  the  Safe  Deposit  Company  of is 

plaintiff,  and  the  C.  &  D.  Railway  Company,  the  E.  &  F. 
Railroad  Company  and  others  are  defendants;  and  also  all 
the  current  liabilities  of  said  receivers,  and  all  contracts  for 
which  the  said  receivers  are  or  may  be  responsible. 


1304 


SUITS    IN    EQUITY. 


Fourth.     That  the  said  C.  &  D.  Railway  Co.,  and  those 

claiming  under  them,  shall  take  and  receive,  on  said day 

of ,   i8 — ,   the  railroads  and   properties  so  transferred, 

assigned,  and  delivered  as  hereinbefore  ordered,  subject  to  all 
claims,  demands,  and  liabilities  now  existing,  or  which  here^ 
after  may  be  made  against  said  receivers,  arising  out  of  their 
receivership,  and  this  court  reserves  and  retains  jurisdiction 
over  the  said  railroads  and  properties,  and  the  said  parties 
hereto  and  those  claiming  under  them,  for  the  purpose  of 
determining  in  .this  cause,  or  having  determined  in  any  of 
the  district  courts  of  the  United  States  in  any  of  the  ancil- 
lary causes  having  ancillary  jurisdiction  herein,  all  such 
claims,  liabilities,  and  demands,  and  for  the  purpose  of  fully 
protecting  the  receivers  against  any  liability  on  any  claims 
or  demands  existing  or  to  exist  against  them,  and  for  the 
purpose  of  protecting  those  having  claims  against  said  re- 
ceivers. 

Fifth.  That  this  cause  is  retained  and  kept  open  for  the 
purpose  of  ascertaining  and  determining  all  claims,  demands, 
and  liabilities  against  said  receivers,  and  against  the  property 
in  their  possession,  and  to  be  surrendered  by  them,  which 
have  arisen  or  may  arise  out  of  their  said  receivership.  All 
such  claims,  demands,  and  liabilities,  if  not  paid  by  the  C. 
&  D.  Railway  Co.  in  due  course,  shall  be  made  and  present- 
ed by  intervention  in  this  cause,  or  in  the  causes  ancillary 
hereto,  for  the  purpose  of  being  ascertained  and  determined 
in  and  by  such  proper  intervention  proceedings ;  and  any 
orders,  judgments,  or  decrees  so  rendered  in  such  proceedings 
may  be  enforced,  and  shall  only  be  enforced,  against  the 
property  of  the  said  railway  company  to  the  same  extent  that 
judgments  could  have  been  enforced  if  said  property  had 
iiot  been  surrendered  into  the  possession  of  said  company 
but  was  still  in  the  possession  of  said  receiver.  Such  inter- 
vention proceedings  must  be  filed  in  this  cause  in  this  court, 
or  in  any  of  the  district  courts  of  the  United  States  having 
jurisdiction   in  any  of  the  ancillary  causes,  on  or  before  the 


RECEIVERS ORIGINAL    PROCEEDINGS.  1305 

I  St  day  of  January,  i8 — ,  and  after  that  date  no  further  in- 
ter\'ention  shall  be  permitted  in  this  cause,  and  the  rights  of 
any  claimants  who  shall  not,  on  or  before  that  date,  have 
commenced  intervention  proceedings  to  avail  themselves  of 
the  remedies  herein  provided  for  their  benefit,  shall  cease 
and  determine.  The  receivers  shall  advertise  in  daily  news- 
papers published  respectively  in  \j1a7ne  of  cities  or  towns]  the 
date  of  the  intended  delivery  of  the  said  property  to  the  said 
company,  and  shall  in  said  advertisement  notify  all  claimants 
to  present  their  said  claims  to  the  C.  &  D.  Railway  Co.,  and 
if  the  same  are  not  settled  or  adjusted,  that  then  the  said 
claimants  shall  intervene  in  the  manner  aforesaid,  and  within 
the  time  aforesaid,  to  wit,  on  or  before  the  ist  day  of  Janu- 
ary, 18 — .  The  said  advertisement  shall  be  commenced 
within  five  days  after  the  entry  of  this  order,  and  shall  be 
inserted  once  a  week  for  three  successive  weeks. 

Sixth.  That  nothing  in  this  decree  contained  is  intended 
to  affect,  or  shall  be  construed  as  affecting,  the  status  of  any 
pending  or  undetermined  litigation  in  which  said  receivers 
appear  as  parties.  Such  litigations  may  continue  to  deter- 
mination in  the  name  of  the  receivers,  but  for  the  use  of  the 
C.  &  D.  Railway  Co.,  and  at  its  cost  and  expense,  and  with 
the  right  to  that  company,  should  it  be  so  advised,  to  appear 
and  be  substituted  in  any  such  litigation. 

Seventh.     That  on  the day  of ,  on  the  day  fixed 

for  the  delivery  of  said  properties  by  the  receivers  to  the  said 
railway  company,  the  title  or  right  of  possession  of  S.  M. 
and  H.  C,  receivers,  as  fixed  and  determined  by  the  certain 

order  made  in  this  cause,  dated ,  and  filed ,  and  the 

said  title  or  right  of  possession  ,  as  fixed  and  determined  by 
certain  subsequent  orders  made  in  this  cause,  extending  and 
continuing  the  said  receivership  to  the  railroads  and  proper- 
ties hereinbefore  mentioned,  shall  cease  and  terminate. 

Eighth.  That  the  receivers'  quarterly  accounts  and  the 
reports  of  T.  M.,  Esq.,  and  A.  P.,  Esq.,  masters,  as  the  same 
have  from  time  to  time  been  made  to  this  court,  which  re- 


1306  SUITS    IX    EQUITY. 

ceivers'  and  master's  reports  were  respectively  filed  as  fol  - 
lows :  \here  set  forth  dates  of  filings  as^  receivers'  report  for 
November  and  December,  1888,  filed  March  4,  1888,  master's 
report  thereon  filed  May  28,  1889],  are  hereby,  and  each 
of  the  said  receivers'  and  master's  reports  respectively,  is  in 
all  things  confirmed  and  approved,  the  parties  having  ex- 
pressly waived  the  right  under  the  rules  to  file  objections 
thereto. 

Ninth.  That  the  receivers  shall  file  an  additional  report 
containing  statement  of  the  receipts  and  disbursements  from 
the  I  St  day  of  April,  18 — ,  to  the  time  of  the  delivery  of  the 
property  aforesaid,  to  wit,  July  i,  18 — ,  and  simultaneously 
with  its  submission  to  the  master  mail  a  duplicate  of  such 
report  to  the  defendant,  the  C.  &  D.  Railway  Co.,  to  its  New 
York  office,  and  thereupon,  without  further  order,  said  report 
shall  stand  referred  to  the  master  heretofore  appointed  in 
this  cause,  and  he  shall  forthwith  proceed  to  pass  upon  the 
same  and  report  to  this  court.  Within  five  days  after  such 
report  of  the  master  has  been  filed,  objections,  if  any  there- 
to, shall  be  filed,  and,  if  no  objections  are  filed  thereto, 
the  same  may  be  submitted  to  the  court  without  further 
notice  ;  and  if  and  when  approved,  the  said  receivers  shall 
be  finally  discharged  as  to  an  accoimting  with  the  C.  &  D. 
Railway  Co.,  and  the  other  companies  hereinbefore  mention- 
ed, and  their  bonds  cancelled  and  discharged. 

Tenth.  That  the  C.  &  D.  Railway  Co.,  and  the  said  re- 
ceivers, S.  M.  and  H.  C,  may  apply  at  the  foot  of  this  de- 
cree for  such  other  and  further  relief  as  may  be  just. 

J.  s., 

District  Judge. 
We  hereby  consent  to  the  entry  of  the  foregoing  decree. 

The  A.  B.  Co., 
By  X.  &  X.,  Solicitors. 
j  M.  P.  Railway  Co., 

'  By  Z.  &  Z.,  Solicitors. 


RECEIVERS ORIGINAL    PROCEEDINGS.  1307i 

No.  874. 

Assignment  by  Railway  Receivers  of  Choses  in  Action,  etc., 
on  the  Surrender  of  the  Property. 

Know  all  men  by  these  presents: 

Whereas,  we,  S.  M.  and  H.  C.  receivers  of  the  C.  &  D. 
Railway,  duly  appointed  and  acting  as  such  under  certain 
orders  and  decrees  made  in  a  certain  suit  in  equity  pending- 

in  the  district  court  of  the  United  States  for  the district 

of  ,   wherein  the   A.    B.   Company   is   plaintiff  and   the 

C.  &  D.  Railway  Company  and  others  are  defendants,  and  also 
under  certain  orders  and  decrees  made  in  certain  ancillary 
causes  between  the  same  parties  pending  in  the  district  court  of 
the  United  States  for  [name  the  courts],  have  been 
ordered  and  directed  by  the  certain  order  entered  in  said  main 
cause  in  the  district  court  of  the  United  States  for  the  district 

of  ,  on  the day  of  ,  to  deliver  at  the  hour  of 

noon  on  the  1st  day  of  July  18 — ,  to  the  C.  &  D.  Railway  Com- 
pany all  the  railroads  and  other  property  of  the  C.  &  D.  Rail- 
way Company,  the  D.  &  W.  Railway  Company,  [etc.,  naming 
all  the  companies],  wheresoever  situated,  whereof  they  are  in 
possession  as  receivers  under  and  pursuant  to  the  orders  of  the 
courts  hereinbefore  referred  to;  and. 

Whereas,  by  said  order  of  the day  of ,  said  receiv- 
ers were  directed  simultaneously  with  the  delivery  of  the 
aforesaid  railroads  and  property,  to  assign  and  transfer  to  the 
C.  •&  D.  Railway  Company  all  the  assets,  uncollected  ac- 
counts, and  choses  in  action  of  the  said  C.  &  D.  Railway 
Company,  or  of  either  of  the  before-mentioned  railroad  com- 
panies, remaining  in  their  hands  and  which  have  accrued  to 
them  as  such  receivers  from  the  possession  and  operation  of 
said  lines  of  railway,  or  either  of  them ;  and 

Whereas,  orders  have  been  entered  in  each  of  said  ancillary 
suits  between  the  same  parties  in  the  above-named  district 
courts  of  the  United  States  for,    [naming  them],  expressly 


1308  SUITS    IN    EQUITY. 

approving  and  confirming  said  order  of  said  district  court  of 
the  United  States  for  the district  of ,  of  date, . 

Now,  therefore,  in  consideration  of  the  premises,  and  pur- 
suant to  the  orders  and  directions  of  the  courts  made  as  herein- 
above stated,  we,  the  said  S.  M.  and  H.  C,  receivers  of  the 
C.  &  D.  Railway  (duly  appointed  and  acting  as  such  by  virtue 
of  the  orders  and  decrees  in  the  aforesaid  suits  in  the  above- 
mentioned  courts),  do  hereby  assign,  transfer,  and  set  over  to 
the  C.  &  D.  Railway  Company  all  and  singular  the  assets, 
uncollected  accounts,  and  choses  in  action  of  the  said  C.  &  D, 
Railway  Company,  the  D.  &  W.  Railway  Company,  etc. 
[naming  them],  remaining  in  our  hands  at  the  date  of  the 
delivery  of  said  railways  and  properties  by  us  to  the  said 
C.  &  -D.  Railway  Company  as  aforesaid,  and  which  have 
accrued  to  us  as  receivers  from  the  operation  and  possession 
of  said  lines  of  railway  or  either  of  them. 

This  assignment  to  become  effective  at  the  hour  of  noon  of 
the  1st  day  of  July,  18 — ,  simultaneously  with  the  delivery 
of.  the  possession  of  the  railroads  and  properties  of  the  fore- 
going companies  to  the  C.  &  D.  Company  as  required  by  the 
orders  and  decrees  of  the  courts  hereinabove  referred  to. 

In   witness  whereof  we  have  hereunto  signed  our  names 

and  affixed  our  seals  this  day  of ,  18 — . 

S.  M.   [Seal.] 
H.  C.   [Seal.] 

[  A  cknozvledgment.  ] 


No.  875. 

Acknowledgment  to  Assignment  by  Receiver. 

The  United  States  of  America, 

State  of  ,  County  of  ,  ss. 

Be  it  remembered,  that  on  this  day  of  ,  before 

me,  E.  G.,  a  notary  public,  duly  commissioned,  qualified,  and 
acting  in  and  for  the  county  and  state  aforesaid,  came  S.  M., 
one  of  the  receivers  of  the  C.  &  D.  Railway,  and  who  is  per- 


RECEIVERS ORIGINAL    PROCEEDINGS.  1309 

sonalh-  known  to  me  to  be  the  identical  person  described  in, 
and  who  executed  and  signed,  the  foregoing  instrument  of 
writing,  and  duly  acknowledged  that  he  executed  the  same 
as  his  free  act  and  deed  for  the  purposes  and  consideration 
therein  expressed. 

In  witness  whereof,  I  have  hereunto  set  my  hand 
[5^^/.]  and  affixed   my  official  seal  the  day  and  year 

last  above  written. 

My  commission  expires  on  the day  of ,  1893. 

E.  G.,  Notary  Public. 
(Similar  acknowledgment  for  other  receiver.) 


No.  876. 

Deed  of  Receivers  of  a  Railroad  Company,  Trustee  and  the 
Purchasers  to  the   Railroad  Property.(l) 

In  the  District  Court  of  the  United  States  for  the  Western 

District  of  Tennessee. 
The  Farmers'  Loan  &  Trust  Company 

vs. 
The    Memphis    &    Charleston    Raihoad  w     t^     • 

Company,    The   Central   Trust   Com.-  ^     "      J^' 

pany    of    New    York    and    Samuel  J 

Thomas. 

An  indenture,  made  the  third  day  of  March,  1898,  by  and 
between  Henry  Fink  and  Charles  M.  McGhee,  receivers  of 
The  Memphis  &  Charleston  Railroad  Company,  appointed  in 
the  suits  in  equity  hereinafter  mentioned  (hereinafter  called 
the  receivers),  parties  of  the  first  part;  and 

The  Memphis  &  Charleston  Railroad  Company,  a  corpo- 
ration created  by  and  existing  under  the  laws  of  the  states  of 
Tennessee,  Alabama  and  Mississippi  (hereinafter  called  the 
railroad  company),  party  of  the  second  part;  and 

The  Farmers'  Loan  &  Trust  Company,  a  corporation  cre- 
ated by  and  existing  under  the  laws  of  the  state  of  New 


1310  SUITS    IX    EQUITY. 

York    (hereinafter   called   the   trustee),    party  of  the  fhird 
part;  and 

Adrian  Iselin,  Jr.,  and  Melville  E.  Ingalls,  Jr.,  both  of 
the  city  of  New  York  and  state  of  New  York,  and  John  W. 
Fewell,  of  the  city  of  Meridian  and  state  of  Mississippi 
(hereinafter  called  the  purchasers),  parties  of  the  fourth 
part;  and 

Southern  Railway  Company,  a  corporation  created  by  and 
existing  under  the  laws  of  the  state  of  Virginia,  party  of  the 
fifth  part;  and 

Memphis  &  Charleston  Railway  Company,  a  corporation 
created  by  and  existing  under  the  laws  of  the  state  of  Mis- 
sissippi, party  of  the  sixth  part; 

Witnesseth : 

Whereas,  on  or  about  the  second  day  of  August,  1895, 
The  Farmers'  Loan  &  Trust  Company,  trustee,  as  complain- 
ant, filed  its  bill  of  complaint,  in  equity,  in  the  Circuit  Court 
of  the  United  States  of  America  for  the  Western  District 
of  Tennessee,  Western  Division,  against  The  Memphis  & 
Charleston  Railroad  Company,  a  corporation  created  by  or 
existing  under  the  laws  of  the  states  of  Tennessee,  Alabama 
and  Mississippi,  and  others,  as  defendants,  for  a  foreclosure 
of  the  consolidated  first  mortgage  of  said  The  Memphis  & 
Charleston  Railroad  Company,  dated  the  20th  day  of  August, 
1877,  ^^^  upon  or  about  that  day  duly  executed,  acknowl- 
edged and  delivered  by  said  Railroad  Company  to  said  The 
Farmers'  Loan  &  Trust  Company,  as  trustee,  and  for  a  sale 
of  the  mortgaged  property  and  premises,  being  the  railroads, 
property,  privileges  and  franchis..  of  said  The  Memphis  & 
Charleston  Railroad  Company,  as  more  specifically  described 
in  said  consolidated  first  mortgage ;  and 

Whereas,  in  said  cause  Henry  Fink  and  Charles  M.  Mc- 
Ghee  were  duly  appointed  receivers  of  all  the  property  of 
every  name  and  nature  of  the  said  railroad  company,  and  the 
said  receivers,  parties  of  the  first  part,  have  continued,  and 
now  are,  receivers  of  such  railroad  property;  and 


RECEIVERS ORIGINAL    PROCEEDINGS.  1311 

Whereas,  such  proceedings  were  had  in  tlie  said  cause  that 
on  the  2d  day  of  March,  1897,  a  decree  of  foreclosure  and 
sale  was  entered  therein  by  the  District  Court  of  the  United 
States  for  the  Western  District  of  Tennessee,  Western  Di- 
vision, at  ]\Iemphis,  Tennessee,  and  upon  November  24,  1897, 
a  decree  supplemental  thereto  was  also  entered  by  said  court 
pursuant  to  the  mandate  of  the  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit :  and 

Whereas,  similar  decrees  foreclosing  such  mortgage,  ancil- 
lary to  said  decree  of  said  District  Court  of  the  United- 
States  for  the  ^^'estern  District  of  Tennessee,  Western  Divi- 
sion, made  on  March  2,  1897,  were  subsequently  entered,  on 
or  about  the  fifth  day  of  April,  1897,  in  similar  suits  brought 
by  The  Farmers'  Loan  &  Trust  Company,  complainant, 
against  the  said  The  Memphis  &  Charleston  Railroad  Com- 
pany, the  Central  Trust  Company  of  New  York  and  Samuel 
Thomas,  as  defendants,  in  the  District  Court  of  the  United 
States  for  the  several  districts  hereinafter  mentioned  —  that 
is  to  say,  the  Eastern  District  of  Tennessee,  Southern  Divi- 
sion; the  Northern  District  of  Alabama,  Northern  Division, 
and  the  Northern  District  of  Mississippi,  Eastern  Division; 
and 

Whereas,  in  and  by  the  said  decrees  Louis  B.  McFarland 
was  appointed  Special  Master  to  execute  the  said  foreclosure 
decrees  and  to  make  the  sale  of  property  therein  provided  for 
and   directed;  and 

Whereas,  in  pursuance  of  such  appointment  the  said  spe- 
cial master  afterwards,  to  wit,  on  the  26th  day  of  February, 
1898,  after  due  advertisement  and  *  notice  of  sale,  as  pre- 
scribed in  the  said  decrees,  and  in  said  supplemental  decree,  at 
public  auction  at  the  railroad  station  upon  the  rail  of  The 
Memphis  &  Charleston  Railroad  Company,  in  the  city  of 
Memphis  and  state  of  Tennessee,  on  the  day  and  at  the  hour 
fixed  by  said  special  master,  in  his  advertisement  of  sale,  and 
in  the  manner  specified  and  directed  in  the  said  decrees 
and  the  said  supplemental  decree,  did  sell  all  and  singular  the 


131?  SUITS    IX    EQUITY. 

railroad,  equipment,  property  and  premises,  rights,  assets, 
privileges  and  franchises,  which  the  said  Special  Master  was 
directed  by  the  said  decrees  and  supplemental  decree  to  sell, 
upon  the  terms  and  conditions  in  said  decrees  and  said  sup- 
plemental decree  set  forth,  to  which  decrees  reference  is  here- 
by specially  and  expressly  made;  and 

Whereas,  at  such  sale  the  said  parties  of  the  fourth  part 
became  the  purchasers  of  all  such  railroad  and  property  and 
franchises,  offered  and  sold  as  a  single  parcel,  the  said  parties 
having  made  such  purchase  as  joint  tenants  and  not  tenants 
in  common,  for  the  benefit  of  the  Southern  Railway  Com- 
pany, a  corporation  organized  and  existing  under  the  laws 
of  the  state  of  Virginia,  as  to  all  of  said  railroad,  real  estate 
and  franchises,  within  the  states  of  Tennessee  and  Alabama, 
and  as  to  all  of  the  equipment,  chattels  and  choses  in  action 
of  said  The  Memphis  &  Charleston  Railroad  Company,  wher- 
ever situate;  and  for  the  benefit  of  a  corporation  to  be  called 
The  Memphis  &  Charleston  Railway  Company,  and  to  be  or- 
ganized under  the  laws  of  the  state  of  Mississippi,  as  to  all 
of  the  railroad,  real  estate  and  franchises,  within  the  state  of 
Mississippi,  as  to  all  of  the  railroad,  real  estate  and  franchises, 
within  the  state  of  Mississippi,  as  more  fully  set  forth  in  the 
petition  of  said  purchasers  filed  in  said  cause  for  the  confirma- 
tion of  said  sale ;  and 

Whereas,  the  said  parties  of  the  fourth  part  did  there- 
after duly  pay  and  satisfy  their  said  bid ;  and 

Whereas,  the  said  Special  Master  did  c^uly  make  his  re- 
port of  said  sale  to  said  District  Courts  of  the  United  States 
for  the  Western  District  of  Tennessee,  Western  Division; 
the  Eastern  District  of  Tennessee,  Southern  Division;  the 
Northern  District  of  Alabama,  Northern  Division,  and  the 
Northern  District  of  Mississippi,  Eastern  Division,  and  the 
said  sale  was  thereafter,  by  decrees,  entered  of  record,  duly 
approved  and  confirmed;  and 

Whereas,  an  order  was  thereafter  made  authorizing  and 
directing  the  said  Louis  B.   McFarland,  as  Special  Master, 


RECEIVERS ORIGINAL    PROCEEDINGS.  1313 

upon  the  terms  and  conditions  set  out  in  the  decree  of  con- 
firmation of  the  said  District  Court  of  the  United  States  for 
the  Western  District  of  Tennessee,  Western  Division,  to  ex- 
ecute, acknowledge  and  dehver  a  deed  of  conveyance  to  the 
said  Southern  Railway  Company,  conveying  to  it,  its  success- 
ors or  assigns,  forever,  all  and  singular  the  said  railroad,  real 
estate  and  franchises,  within  the  states  of  Tennessee  and  Al- 
abama, and  also  all  estate,  equipment,  personal  property  and 
choses  in  action,  wheresoever  situate;  including  also  all  in- 
come, proceeds  of  income,  bills  and  accounts  receivable,  cash 
and  other  property,  received  by  the  said  receivers,  and  all 
causes  of  action  and  judgments,  by  them  acquired  or  obtain- 
ed, in  the  management  or  operation  of  the  said  mortgaged 
premises  embraced  in  the  conveyance  thereof,  or  pertaining 
thereto;  and  also  any  and  all  property  of  the  said  railroad 
company,  appurtenant  to  the  premises  and  required  for  use 
in  connection  with  or  for  the  purposes  of  said  railroad,  or 
for  the  business  of  said  railroad  company,  and  vested  in  or 
standing  in  the  name  of  the  said  receivers,  or  to  which  the 
said  receivers  in  any  manner  had  acquired  title;  and  a  deed 
of  conveyance  to  the  purchasers,  conveying  to  them,  or  to 
their  successors  or  assigns,  forever,  subject  to  the  same  con- 
ditions, all  and  singular  the  railroad,  real  estate  and  fran- 
chises, within  the  state  of  Mississippi,  so  as  aforesaid  sold 
under  the  said  decree  and  said  supplemental  decree,  free  from 
any  and  all  equity  of  redemption  of  the  said  The  Memphis 
&  Charleston  Railroad  Company,  or  any  one  claiming  by, 
under  or  through  it,  except  certain  liens  sp>ecified  in  said  de- 
cree; and 

Whereas,  the  said  Special  Master  thereafter  did  make,  ex- 
ecute and  deliver  his  conveyance  to  the  party  of  the  fifth  part, 
and  to  the  parties  of  the  fourth  part,  respectively,  which  said 
deed  or  conveyance  bears  date  the  26th  day  of  February, 
1898,  and  to  which  reference  hereby  is  made;  and 

Whereas,  The  Memphis  &  Charleston  Railway  Company, 
party  of  the  sixth  part  hereto,  has  been  duly  organized  as  a 


1314  SUITS    IN    EQUITY. 

corporation  under  the  laws  of  the  state  of  Mississippi;  and 
Whereas,  the  said  parties  of  the  fourth  part  desire  to  vest 
in  the  party  of  the  fifth  part,  and  in  the  party  of  the  sixth 
part,  severally  and  respectively,  the  full  and  complete  title  to 
the  several  properties  and  franchises  by  them  so  purchased 
for  the  benefit  of  the  s«»id  parties  of  the  fifth  part  and  sixth 
part,  respectively;  and 

Whereas,  the  decree  of  confirmation  of  said  United  States 
District  Court  for  the  Western  District  of  Tennessee,  West- 
ern Division,  further  provided  that  by  way  of  further  assur- 
ance and  confirmation  of  title  to  the  said  Southern  Railway 
Company,  and  to  the  said  Memphis  &  Charleston  Railway 
Company,  severally  and  respectively,  the  receivers  of  said 
court  in  said  cause,  and  also  the  said  The  Memphis  &  Charles- 
ton Railroad  Company,  by  its  proper  officers,  and  under  its 
corporate  seal,  and  The  Farmers'  Loan  &  Trust  Company, 
trustee,  should,  under  the  direction  of  the  Special  Master,  and 
upon  request  of  the  said  Southern  Railway  Company,  and 
of  the  said  purchasers,  or  their  successor,  the  said  Memphis 
&  Charleston  Railway  Company,  severally  and  respectively, 
sign,  seal,  execute,  acknowledge  and  deliver  to  the  said  two 
corporations,  parties  hereto  of  the  fifth  part  and  sixth  part, 
severally  and  resp-ectively,  all  proper  deeds  of  conveyance, 
transfer,  release  and  further  assurance  of  all  and  singular 
the  mortgaged  property  and  premises,  and  every  part  and 
parcel  thereof,  of  every  kind  and  description,  and  wherever 
situate,  so  as  aforesaid  sold  under  the  said  decree  and  said 
supplemental  dcree  of  the  said  court,  and  embraced  in  the 
said  deed  of  the  Special  Master  so  as  fully  and  completely  to 
transfer  to,  ar/d  to  vest  in,  the  Southern  Railway  Company, 
party  hereto  of  the  fifth  part,  and  in  the  Memphis  &  Charles- 
ton Railway  Company,  party  hereto  of  the  sixth  part,  sev- 
erally and  respectively,  their  successors  and  assigns,  the  full, 
legal  and  equitable  title  to  all  such  railroad  property  rights, 
assets  and  franchises,  sold  or  intended  to  be  sold  under  the 
said  decree  and  said  supplemental  decree  of  said  court;  and 


RECEIVERS ORIGIXAI,    PROCEEDINGS. 


1315 


Whereas,  the  said  purchasers,  parties  hereto  of  the  fourth 
part,  and  the  said  party  hereto  of  the  fifth  part,  and  the  said 
party  hereto  of  the  sixth  part,  have  respectively  complied  with 
and  fulfilled  all  the  terms  and  conditions  of  the  said  decrees; 
and 

Whereas,  the  said  parties  hereto  of  the  fifth  part  and  sixth 
part,  severally  and  respectively,  are  now  entitled  to  a  convey- 
ance of  the  property  so  purchased  for  and  confirmed  to  them : 

Now,  therefore,  this  indenture  witnesseth :  That  the  said 
receivers,  parties  of  the  first  part,  the  said  railroad  company, 
party  of  the  second  part,  the  said  trustee,  party  of  the  third 
part,  and  the  said  purchasers,  parties  of  the  fourth  part,  in 
consideration  of  the  sum  of  one  dollar  to  each  of  them  in 
hand  paid  by  the  parties  of  the  fifth  part  and  sixth  part,  sever- 
ally and  respectively,  and  according  to  their  several  and  re- 
spective interests  and  in  pursuance  of  the  directions  of  the  said 
decree. 

Have  granted,  bargained,  transferred,  sold  and  conveyed, 
and  by  these  presents  do  hereby  grant,  bargain,  transfer,  sell 
and  convey. 

First.  Unto  said  Southern  Railway  Company,  and  its 
successors  and  assigns  forever: 

All  of  the  railroad,  real  estate  and  franchises,  hereinafter 
described  or  referred  to,  within  the  states  of  Tennessee  and 
Alabama,  and  as  to  all  of  the  equipment,  chattels  and  choses 
in  action  of  said  The  Memphis  &  Charleston  Railroad  Com- 
pany, wherever  situate; 

Together  with  all  the  corporate  estate,  equity  of  redemp- 
tion, rights,  privileges,  immunities  and  franchises  of  said 
The  Memphis  &  Charleston  Railroad  Company,  and  all  the 
tolls,  fares,  freights,  rents,  income,  issues  and  profits  of  the 
said  railroads,  and  all  interest  and  claims  and  demands  of 
every  nature  and  description,  and  all  the  reversion  and  re- 
versions, remainder  and  remainders  thereof,  including  all  the 
said  mortgaged  premises  and  property  in  said  decrees  direct- 
ed to  be  sold,  at  any  time  owned  or  acquired  by  said  Til* 


1316  SUITS    I?J    EQUITY. 

Memphis  &  Charleston  Railroad  Company,  and  including"  also 
all  income,  proceeds  of  income,  bills  and  accounts,  receivable, 
cash  and  other  property  received  by  the  receivers,  and  all 
causes  of  action,  and  judgments,  by  them  acquired  or  ob- 
tained, in  the  management  or  operation  of  the  mortgaged 
premises  embraced  in  this  conveyance  or  pertaining  thereto, 
and  also  any  and  all  property  of  the  said  railroad  company 
appurtenant  to  the  premises  and  required  for  use  in  connection 
with  or  for  the  purposes  of  said  railroad,  or  the  business  of 
said  railroad  company,  and  vested  in  or  standing"  in  the  name 
of  the  said  receivers,  or  to  which  the  said  receivers  in  any 
manner  'have  acquired  title ;  excepting-,  however,  all  such 
leases  and  contracts  sold  with  the  said  property  as  the  parties 
of  the  fifth  and  sixth  parts,  severally  and  respectively,  shall 
within  ninety  days  after  the  delivery  of  this  deed  elect  not  to 
assume  and  adopt ;  and 

Second.  Unto  Memphis  &  Charleston  Railway  Company, 
and  its  successors  and  assigns  forever : 

All  of  the  railroad,  real  estate  and  franchises  within  the 
state  of  Mississippi; 

A  more  full  and  particular  description  of  the  property  in- 
tended to  be  conveyed  by  this  instrument  being  contained  in 
said  decree  of  the  2d  day  of  March,  1897,  and  said  supple- 
mental decree  of  November  24,  1897,  and  in  said  Special 
Master's  deed  on  the  26th  day  of  February,  1898,  to  which 
reference  hereby  is  made: 

To  have  and  to  hold,  all  and  singular,  the  above  mentioned 
railroads,  premises,  rights,  privileges,  interests,  franchises, 
lands,  tenements,  hereditaments,  appurtenances  and  property 
of  every  description,  whether  real,  personal  or  mixed,  herein 
conveyed  or  intended  to  be  conveyed,  unto  the  said  Southern 
Railway  Company,  party  of  the  fifth  part,  its  successors  and 
assigns,  as  to  all  of  the  said  railroad,  real  estate  and  fran- 
chises, within  the  states  of  Tennessee  and  Alabama,  and  as 
to  all  the  equipment,  chattels  and  choses  in  action  of  said 
The  Memphis  &  Charleston  Railroad  Company,  wherever  sit- 


RECEIVERS ORTGINAT.    PROCEEDINGS. 


1317 


uate ;  and  unto  the  said  Memphis  &  Charleston  Railway  Com- 
pany, party  of  the  sixth  part,  its  successors  and  assigns,  as 
to  all  of  the  railroad,  real  estate  and  franchises,  within  the 
state  of  Mississippi ;  and  the  said  Southern  Railway  Company 
and  the  said  Memphis  &  Charleston  Railway  Company,  their 
and  each  of  their  successors  and  assigns  forever,  hereby  sev- 
erally and  respectively,  are  invested  with  the  same  (the  said 
Southern  Railway  Company,  as  to  all  said  railroad,  real  estate 
and  franchises,  within  the  states  of  Tennessee  and  Alabama, 
and  as  to  all  said  equipment,  chattels  and  choses  in  action, 
wherever  situate;  and  the  said  Memphis  &  Charleston  Rail- 
way Company  as  to  all  of  the  railroad,  real  estate  and  fran- 
chises, within  the  state  of  Mississippi),  as  fully  and  complete- 
ly as  said  The  Memphis  &  Charleston  Railroad  Company,  one 
of  the  defendants  in  said  suits  in  equity,  held  or  enjoyed,  or 
was  entitled  to  hold  or  to  enjoy,  or  was  seized  of,  or  was  en- 
titled to,  at  the  time  of  the  entry  of  the  said  decree,  or  at  the 
time  of  the  commencement  of  said  suits,  and  as  fully  and  ab- 
solutely as  the  said  parties  of  the  first,  second,  third  and 
fourth  parts,  severally  and  respectively,  may  or  ought,  by  vir- 
tue of  said  decrees,  to  bargain,  sell,  release,  assign  or  convey. 

It  is  understood  and  agreed  that  nothing  herein  contained 
shall  be  construed  as  expressly  or  impliedly  subjecting  the 
parties  of  the  first  part,  or  the  party  of  the  third  part,  or  the 
parties  of  the  fourth  part,  or  any  of  said  parties,  to  any  per- 
sonal covenant  or  liability  whatsoever. 

In  witness  whereof,  the  said  parties  of  the  first  part  have 
hereunto  set  their  hands  and  seals  as  of  the  third  day  of 
March,  1898,  and  the  said  The  Memphis  &  Charleston  Rail- 
road Company,  party  of  the  second  part,  has  caused  its  cor- 
porate seal  to  be  hereunto  affixed  and  attested  by  its  secre- 
tary and  these  presents  to  be  signed  on  its  behalf  by  its  presi- 
dent, as  of  the  third  day  of  March,  1898,  and  the  said  The 
Farmtrs'  Loan  &  Trust  Company,  party  of  the  third  part, 
has  likewise  caused  its  corporate  seal  to  be  hereunto  affixed 
and  attested  by  its  secretary,  and  these  presents  to  be  signed 


1318 


SUITS    TN    EQUITY. 


on  its  behalf  by  its  vice  president,  as  of  the  third  day  of 
March,  1898,  and  the  said  parties  of  the  fourth  part  have 
hereunto  set  their  hands  and  seals  as  .of  the  third  day  of 
March,  1898. 

Signed,  sealed  and  delivered  in  presence  of: 

C  M.  McGhee,       [Seal.'] 
Henry  Fink,  [Seal.'] 

As  Receivers  of  the  Memphis  &  Charleston  Railroad 

Company. 
As  to  Henry  Fink : 

Melville  E.  Ingalls,  Jr. 
Wm.   H.  Bruder. 
The  Memphis  &  Charleston  Railroad  Company, 

By  Samuel  Thomas,  President. 
Signed,  sealed  and  delivered  in  presence  of: 
J.  A.  Hilton. 
Wm.  H.  Bruder. 
Attest:     A.  O.  Beebe, 
{_Seal  ]  Secretary. 

The  Farmers'  Loan  &  Trust  Company, 

By  E.  S.  Marston,  Vice  President. 
Signed,  sealed  and  delivered  in  presence  of: 
Melville  E.  Ingalls,  Jr. 
Wm.  H.  Bruder. 
Attest:     Sam  Sloan,  Jr., 
[Seal.]  Secretary. 

Signed,  sealed  and  delivered  in  presence  of: 

Adrian  Iselin,  Jr.,  [Seal.'] 

Melville  E.  Ingalls,  Jr.,    [Seal.] 

Jno.  W.  Fewell,  [Seal.] 

Purchasers. 

As  to  Adrian  Iselin,  Jr. : 

Melville  E.   Ingalls,  Jr. 
Wm.   H.  Bruder. 
As  to  Melville  E   Ingalls,  Jr. : 
Hall  Park  McCullough. 


RECEIVERS ORIGIXAL    PROCEEDIXGS.  131' 

Wm.  H    Bruder. 
As  to  John  W.  Fevveil: 
R.  A.  Fewell. 
A.  S.  Bozeman. 

State  of  New  York, 
County  of  New  York,  ss. 

I,  Wm.  H.  Bruder,  a  notary  public  in  and  for  the  county 
of  New  York,  in  the  state  of  New  York,  do  hereby  certify 
that  on  this  22d  day  of  March,  1898,  in  the  year  1898,  Henry 
Fink,  whose  name  is  signed  to  the  foregoing  and  hereto  an- 
nexed deed,  bearing  date  the  third  day  of  March,  1898,  as 
one  of  the  receivers  of  the  Memphis  &  Charleston  Railroad 
Company,  with  whom  I  am  personally  acquainted,  and  who 
is  to  me  known  and  known  to  me  to  be  one  of  the  above-named 
grantors  and  bargainors,  personally  appeared  before  me,  at 
my  office,  in  said  county,  and  he,  then  and  there  being  in- 
formed of  the  contents  of  the  said  deed,  on  this  day  acknowl- 
edged the  due  execution  of  the  said  deed;  and  further  ac- 
knowledged that  he  voluntarily  executed,  signed,  sealed  and 
delivered  the  said  deed  on  the  22d  day  of  March,  1898,  as 
his  free  act  and  deed  for  the  uses  and  purposes  therein  men- 
tioned, and  for  the  purposes  therein  contained. 

And  I  hereby  certify  that  I  am  a  duly  appointed  notary 
public  in  and  for  the  said  county  and  state,  and  my  commis- 
sion commences  on  the  31st  day  of  March,  1897,  ^^^  that  my 
commission  as  such  notary  public  expires  with  the  30th  day 
of  March,  1899. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 
my  official  seal  as  notary  public  for  the  county  of  New  York, 
and  state  of  New  York,  this  22d  day  of  March,  1898. 

[Seall  Wm.  H.  Bruder, 

Notary  Public,  County  of  New  York,  State  of  New 
York. 

(l)  The  foregoing  deed  of  the  receivers  of  a  railroad  company,  trustee 
and  the  purchasers  at  a  judicial  sale  is  copied  from  the  record  in  the 
case  of  The  Farmers'  Loan  &  Trust  Co.  vs.  The  Memphis  &  Charleston 


1320  SUITS    IN    EQUITY. 

R.  R,  Co.,  pending  in  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Tennessee.  The  Circuit  Court  of  Appeals  refused 
to  disturb  these  proceedings  in  Rothschild  vs.  Memphis  &  Charleston  R. 
Co.,  113  Fed.  476. 


RECEIVERS ANCILLARY    PROCEEDINGS.  1321 


ANCILLARY  PROCEEDINGS  * 

No.  877. 

Ancillary  Bill.  In  re  Receivers  for  a  Manufacturing  Com- 
pany where  Receivers  were  Appointed  by  a  State  Court; 
before  a  Federal  Court  took  Jurisdiction. 

[Caption.] 

To  the  Honorable  Judg-e  of  the  District  Court  for  the  

district  of  ,  sitting  in  equity: 

A.  B.,  a  citizen  of  the  state  of  ,  and  residing  in  the 

township  of  ,  in  said  state  of ,  on  behalf  of  himself 

and  all  other  creditors  and  stockholders  of  the  C.  D.  Com- 
pany, defendant  herein,  and  who  may  hereafter  become  par- 
ties to  this  suit  and  contribute  to  the  expenses  thereof,  brings 
this  bill  of  complaint  against  the  C.  D.  Company,  a  corpora- 
tion organized  and  existing  under  the  laws  of  the  state  of 
New  Jersey  and  citizen  of  the  said  state  of  New  Jersey,  and 
respectfully  shows  to  the  court  as   follows: 

First.  That  plaintifif,  A.  B.,  is  and  was  at  the  date  of 
the  commencement  of  this  suit  a  citizen- of  the  state  of  — — , 

residing  in  the  township  of ,  and  was,  at  said  date,  and 

still  is,  a  shareholder  of  the  C.  D.  Company,  and  that  the  par 
and  also  the  market  value  of  the  capital  stock  so  held  by  the 
said  party  as  aforesaid  is  and  was  at  the  date  of  the  commence- 
ment of  this  suit  and  at  all  times  of  greater  value  than 

thousand  dollars. 

That  the  C.  D.  Company  is  a  corporation  duly  incorpo- 
rated and  existing  under  the  laws  of  the  state  of  New  Jersey, 
and  is  and  at  all  times  has  been  a  citizen  of  said  state  of  New 
Jersey,  located  and  carrying  on  business  in  said  state. 


*  As  to  jurisdiction  and  a  discussion  of  ancillary  receiverships.     See 
Foster's  Fed.  Prac,  Sth  ed.,  Sec.  304,  pp.  948  to  956. 


1322  SUITS    IN    EQUITY. 

That  said  company  was  duly  organized  under  an  act  of  the 
legislature  of  the  said  state  of  New  Jersey,  entitled,  "An  act 
concerning  corporations,"  dated  April  7,  1875,  and  the  several 
supplements  thereof,  and  by  a  certificate  of  organization  bear- 
ing date  of  the day  of ,  1887,  and  recorded  on  the 

day  of ,  1887,  in  the  office  of  the  clerk  of  the  county 

of ,  and  afterwards  on  the  same  day  filed  with  the  secre- 
tary of  state  at  Trenton,  in  said  state,  and  that  the  principal 
office  of  the  said  corporation  is  located  within  the  county  of 
,  in  said  state.  That  the  authorized  capital  of  said  corpo- 
ration as  fixed  by  the  said  certificate  is dollars,  divided 

into hundred  shares  of  the  par  value  of hundred 

dollars  each,  and  that  the  said  stock  was  thereafter  increased 

to  the  sum  of million  dollars,  of   which  million 

dollars  is  preferred  stock  and million  dollars  common 

stock,  all  of  which  is  now  outstanding. 

Second.  That  the  objects  for  which  the  said  corporation 
was  formed  are  to  manufacture  and  sell  \cordage  and  binder 
twine\  and  similar  commodities,  and  for  the  carrying  on  of 
such,  similar  business  as  more  fully  appears  by  reference  to 
the  certificate  of  organization,  a  true  copy  of  which  is  an- 
nexed to  this  bill  and  marked  "  Schedule  A,"  and  made  a 
part  of  this  bill  of  complaint. 

That  soon  after  the  organization  of  said  corporation  it 
entered  upon  the  manufacture  and  sale  of  \cordage  and 
binder  tivine']  and  such  other  business  as  is  authorized  by 
said  certificate  of  organization,  and  has  since  such  time 
prosecuted  the  same  in  the  several  states  of  New  Jersey,  New 
York,  and  Ohio,  in  all  of  which  states  it  is  now  operating 
[cordage  and  binder  twine'\  mills. 

That  the  said  corporation  has  real  or  personal  property  in 
all  of  the  said  states,  and  is  now  largely  engaged  in  active 
manufacturing  in  each  of  the  said  states,  employing  in  all  a 

number  of  persons  amounting  to or  thereabouts,  and 

operating  directly  or  indirectly  a  number  of  cordage  mills. 

Third.     On   information  and  belief,  on    the day    of 

,  1893,  the  payment  of  a  debt  of dollars,  due  on 


RECEIVERS ANCILLARY    PROCEEDINGS. 


1323 


demand,  was  demanded  of  the  said  C.  D.  Company,  and  re- 
mained unpaid  and  default  existed  in  the  payment  thereof, 
the  said  corporation  not  having  sufficient  funds  to  pay  the 

same,  and  other  debts  aggregating dollars  or  thereabouts 

on  the day  of ,  1893,  will  become  due,  which  said 

corporation  is  unable  to  pay.  That  the  further  debts  will 
mature  within  a  few  days  to  the  amount  of  several  hundred 

thousand  dollars,  and  that  during  the  entire  month  of 

debts  will  mature,  aggregating  in  all dollars. 

That  in  the  months  of  June,  July,  August,  and  September, 
other  large  indebtedness  on  commercial  paper  and  otherwise 
will  mature,  exceeding  in  all dollars. 

That  the  corporation  is  without  funds  to  pay  the  debts 
maturing  at  the  present  time,  and  will  make  default  in  pay- 
ment of  such  other  debts  accruing  within  a  few  days,  and 
that  in  the  present  situation  of  affairs  it  is  not  possible  to  pay 
the  same. 

That  the  assets  of  the  corporation,  which  are  valuable,  are 
not  available,  either  for  the  payment  of  its  debts  or  for  the 
raising  of  money  to  pay  the  same. 

That  the  corporation  is  unable  to  meet  its  obligations  as 
they  mature,  and  has  no  prospect  at  the  present  time  of 
meeting  the  same  or  of  resuming  its  usual  business,  and  that 
the  corporation  is  insolvent . 

Fourth.  Plaintiff  further  r,ays  tliat  the  assets  of  the 
corporation  consist  of  [cordage]  mills  owned  or  leased  in  the 
several  states  hereinabove  mentioned,  together  with  the  raw 
stock  in  process  of  manufacture,  and  manufactured  stock, 
and  book  accounts  and  bills  receivable  the  greater  part  of 
all  of  which  are  scattered  through  various  states,  and  the 
same  are  likely  to  be  attached  by  creditors  without  the  state 
of  New  Jersey  on  the  ground  that  the  corporation  is  a  for- 
eign corporation,  and  that  unless  a  receiver  is  appointed  for 
the  equal  protection  and  benefit  of  all  creditors,  attachments 
will  be  issued  and  preferences  obtained  by  some  to  the  in- 
jury of  the  general  creditors  of  the  company,  and,  moreover, 


1324  SUITS    IN    EQUITY. 

certain  obligations  mature  in  connection  with  the  various 
mills  of  the  company,  which  can  not  now  be  paid,  which 
properties  are  necessary  to  the  operations  of  the  company, 
and   which   properties   otherwise    would   be   lost. 

And   plaintiff    further   alleges   on    information   and   belief, 

that  on  the day  of ,  in  the  year  1893,  a  certain  suit 

was  commenced  in  the  court  of  chancery  in  the  state  of  New 
Jersey,  a  court  of  record  and  having  jurisdiction  of  the  par- 
ties and  the  subject-matter,  and  at  the  domicile  of  the  cor- 
poration; that  in  said  suit  J.  W.  was  plaintiff,  and  the  C.  D. 
Company,  defendant,  and  in  and  by  the  bill  of  complaint  in 
said  suit,  it  was  averred  that  the  said  corporation  was  insol- 
vent, and  it  was  prayed,  among  other  things,  that  a  receiver 
might  be  appointed  according  to  the  statutes  of  the  state  of 
New  Jersey  in  such  case  made  and  provided,  and  that  the 
said  corporation  shall  be  declared  insolvent,  and  that  said  re- 
ceiver so  to  be  appointed  should  thereupon  take  possession  of 
the  goods,  property  and  chattels  of  the  said  C.  D.  Company, 
and  proceed  to  realize  and  dispose  of  the  same,  and  that  said 
corporation  and  its  officers  should  be  restrained  from  col- 
lecting or  receiving  such  debts  or  from  assigning  or  transfer- 
ring the  property,  to  all  and  singular  the  allegations  in  which 
bill,  references  are  hereby  had,  as  if  the  same,  and  each  of 
the  allegations  were  incorporated  at  length  herein. 

That  thereupon  the  said  bill  was  duly  filed  as  aforesaid, 
and  application  in  due  form  to  the  chancellor  of  the  state  of 
New  Jersey,  having  jurisdiction  for  the  appointment  of  a 
receiver  or  receivers,  and  that  the  said  case  came  on,  and 
was  duly  heard  by  his  honor,  the  chancellor,  pursuant  to  the 
statutes  of  the  state  of  New  Jersey,  the  said  corporation  be- 
ing present  in  court,  and  requesting  such  appointment,  and 

such  proceedings  were  had  therein  that  on  the day  of 

,   1893,    it    was    duly    adjudged,    found,    decreed,  and 

ordered  by  the  said  court  of  chancery  of  the  state  of  New 
Jersey,  that  the  said  company  had  become  insolvent,  and 
that  an  injunction  be  issued  to  restrain  said  company  and 


RECEIVERS ANCILLARY    PROCEEDINGS.  L32.S 

its  officers  from  exercising  any  privileges  and  franchises  and 
from  taking  or  dealing  with  the  assets  of  the  said  company, 
or  from  transferring  the  same,  except  to  the  receivers  here- 
inafter named,  and  that  S.  M.,  of  Jersey  City,  in  the  state  of 
New  Jersey  and  H.  C,  of  the  city,  county,  and  state  of  New 
York,  were  in  due  form  of  law  appointed  receivers  of  the 
said  C.  D.  Company,  with  full  power  and  authority  to  collect, 
receive,  or  to  take  unto  their  possession,  all  and  singular  the 
property,  real  and  personal,  belonging  to  said  company,  to 
dispose  of  the  same,  and  to  deal  therewith  as  in  such  order 
is  specifically  provided,  and  it  was  furtlier  provided  therein 
that  the  said  receivers  should  give  a  bond  to  the  said  chan- 
cellor for  the  faithful  performance  of  their  several  duties, 
and  for  the  obedience  of  such   orders  as  he,  from   time  to 

time,  may  make,  in  the  sum  of dollars  ,duly  approved 

as  in  such  order  specified  by  a  special  master  of  the  said 
court. 

That  thereupon  the  said  S.  M.  and  H.  C,  duly  thereafter 
took  the  oath  of  office,  as  such  receivers,  as  is  prescribed  by 
the  statute,  and  each  duly  thereafter  executed  his  bond  as 
prescribed  in  such  order,  in  the  said  sum  therein  named,  which 
bond  was  thereafter  duly  approved  in  the  form  required  by 
such  order  and  duly  filed  as  required  by  law,  and  that  the 
said  receivers  entered  upon  the  performance  of  their  duty 
and  are  now  in  the  possession  of  the  assets  and  property  of 
the  said  C.  D.  Company,  and  the  said  order  of  the  court  of 
chancery  is  now  in  full  force  and  effect.  A  copy  of  all  the 
proceedings  in  the  said  suit  hereinabove  mentioned  is  at- 
tached hereto,  marked  "C,"  to  which  your  orators  refer,  as 
if  herein  specifically  stated  at  length. 

Plaintiff  further  alleges  that  from  the  nature  of  the  business 
and  the  necessity  of  intelligent  mutual  co-operation  in  the 
several  states,  it  is  highly  desirable  that  the  same  receiver,  if 
possible,  should  act  in  each  jurisdiction. 

Fifth.     Plaintiff  further  alleges  that  on  the  day  of 

,    1893,    he    commenced    in    the    district    court    of    the 


1326  SUITS    IN    EQUITY. 

United  States,  for  the district  of ,  a  court  of  record, 

and  having  jurisdiction  of  the  parties  and  the  subject-mat- 
ter, a  suit  wherein  the  C.  D.  Company  was  defendant,  and 
wherein  substantially  the  same  allegations  were  made  as  were 
made  in  the  New  Jersey  suit,  hereinbefore  referred  to,  and 
wherein  it  was  stated  that  such  suit  had  been  begun  in  New 
Jersey,  and  S.  M.  and  H.  C.  had  been  appointed  therein  as 
receivers,  and  prayed  that  the  same  receivers  might  be 
appointed  in  said  suit  in  the  district  court  of  the  United  States 

for  the  district  of .     That,  thereafter,  on  the  said 

day  of  ,  an  order  was  made  by  the  Hon.  J.  S., 

district  judge,  appointing  said  S.  M.  and  H.  C.  receivers  of 
said  C.  D.  Company. 

A  copy  of  said  order  and  the  bill  of  complaint  in  said  suit, 
and  of  the  affidavits  and  exhibits  referred  to  in  said  order, 
which  exhibits  include  the  bill  of  complaint  in  the  suit  in 
'New  Jersey,  and  an  order  appointing  receivers  in  said  suit, 
and  of  the  affidavit  used  therein,  is  attached  hereto  marked 
"A." 

Sixth.     Plaintiff  further  shows  that  on  the  day  of 

,  1894,  he  commenced  a  suit  in  the  district  court  of  the 


United  States  for  the district  of ,  against  the  C.  D, 

Company,  making  substantially  the  same  allegations  in  said 
bill  as  were  made  by  him  in  the  bill  filed  in  the  suit  in  the 

district  court  for  the  district  of  ,  and  supporting 

said  allegations  by  substantially  the  same  affidavits,  and  upon 
said  bill  and  affidavits  the  Hon.  H.  L.,  district  judge,  made 
an  order  in  all  respects  similar  to  the  order  made  by  the 
Hon.  J.  S.,  above  referred  to,  and  in  said  order  appointed  the 
said  S.  M.  and  H.  C.  receivers. 

Plaintiff  further  alleges  that  from  the  nature  of  the  busi- 
ness of  said  C.  D.  Company,  and  from  the  fact  that  the  said 
S.  M.  and  H.  C.  have  been  appointed  receivers  in  three  courts, 
and  the  necessity  of  intelligent  mutual  co-operation  in  the 
various  states  wherein  assets  of  said  company  are  situated, 
it  is  highly  desirable  that  the  same  receivers,  if  possible,  should 
act  in  all  the  jurisdictions. 


RECEIVERS ANCILLARY    PROCEEDINGS.  1327 

Seventh.  Inasmuch,  therefore,  as  plaintiff  has  no  ade- 
quate remedy  at  law,  and  can  only  have  relief  in  equity,  he 
files  this  bill  of  complaint  on  behalf  of  himself  and  all  others 
similarly  situated,  and  prays  as  follows: 

I  St.  That  due  process  of  law  be  issued  against  the  de- 
fendant, the  C.  D.  Company,  and  that  it  be  summoned  to 
appear  in  this  court,  and  answer  this  bill  of  complaint,  but 
without  oath,  all  answers  under  oath  being  expressly  waived, 
and  to  stand  and  abide  by  such  orders  and  decrees  as  the 
court  from  time  to  time  may  adjudge. 

2nd.  That  the  court  will  administer  the  assets  of  the  de- 
fendant. 

3rd.  That  the  court  will  forthwith  confirm  the  appoint- 
ments heretofore  made  of  S.  M.  and  H.  C.  as  receivers  of  all 
and  singular  the  property  of  the  C.  D.  Company,  and  will 
appoint  receivers  of  the  property  and  assets  of  the  defendant, 
the  C.  D.  Company,  real  and  personal,  together  with  all  the 
equipment,  property,  material,  supplies,  and  other  assets  of 
every  description,  wherever  situated,  together  with  all  lease- 
holds, rights,  and  contracts,  with  authority  to  maintain  and 
carry  on  the  business  under  the  direction  of  the  court,  and 
that  the  said  C.  D.  Company,  its  officers,  agents,  and  em- 
ployees, be  forthwith  required  and  directed  to  deliver  up  to 
such  receivers  so  appointed  all  and  singular  each  and  every 
part  of  the  said  property  wherever  situated,  and  that  the 
officers,  directors,  managers,  and  agents  of  the  said  CD. 
Company,  and  each  of  them,  be  enjoined  from  interfering  in 
any  way  with  the  possession  and  control  of  the  said  receiv- 
ers, and  that  they  be  directed  forthwith  to  execute  proper 
transfer  and  assignments  to  such  receivers  so  appointed,  and 
all  and  singular  such  assets,  real  and  personal,  wherever  situ- 
ated. 

4th.  That  each  and  every  of  the  creditors  of  said  corpor- 
ation be  restrained  and  enjoined  from  interfering  with  the 
said  property  and  assets  of  the  company. 


1328  SUITS    IN    EQUITY, 

5th.     That  the  plaintiff  may  have  such  other  and  further 
relief  as  the  court  may  deem  proper  and  necessary. 

R.  X., 
Solicitor  for  Plaintiff. 
S.  X., 
of  Counsel. 
[Verification.] 


No.  878. 
Ancillary  Bill  for  Foreclosure  of  Railway. 
[Caption.] 

Plaintiff,  the  A.  B.  Trust  Company,  a  corporation  cre- 
ated by  and  existing  under  the  laws  of  the  state  of ,  and 

a  citizen  and  resident  of  said  state,  shows  unto  your  honors 
that  it  has  already  filed  in  the  district  court  of  the  United 
States  for  the district  of ,  the  court  having  jurisdic- 
tion of  the  C.  &  D.  Railway  Com.pany,  a  bill  of  complaint 
against  said  C.  &  D.  Railway  Company,  a  corporation  having 

its  principal  office  in  the  state  of  ,   and  a  citizen  and 

resident  of  said  state  of ,  and  against  the  M.  P.  Railway 

Company,  a  corporation  existing  under  the  laws  of  the  state 
of ,  and  citizen  of  said  state  of ,  seeking  for  the  fore- 
closure of  a  certain  indenture  of  mortgage  or  deed  of  trust, 

dated  ,  known  as  the  general  consolidated  mortgage  of 

the  said  C.  &  D.  Railway  Company.  That  a  portion  of  the 
line  of  railway  and  property  owned  by  the  said  C.  &  D.  Rail- 
way Company,  and  subject  to  the  lien  of  said  general  consoli- 
dated mortgage,  is  in  this  district  and  within  the  jurisdiction 
of  this  court. 

Plaintiff  respectfully  refers  to  said  bill  of  complaint  for 
a  more  particular  statement  of  the  contents  thereof,  and  for 
the  terms  and  conditions  of  the  said  general  consolidated 
mortgage,  and  plaintiff  files  herewith  a  true  copy  of  said 
bill  of  complaint,  and  prays  that  your  honors  will  take  the 


RECEIVERS ANCILLARY    PROCEEDINGS.  1329 

same  as  a  part  of  this  ancillary  bill ;  plaintiff  further  shows 
that  all  the  statements  contained  in  said  bill  are  true,  as  it  is 
informed  and  verily  believes,  and  it  repeats  the  same  herein. 

And  plaintiff  makes  the  same  persons  defendants  in  this 
case  that  are  named  in  said  bill  filed  as  aforesaid,  and  prays 
process  against  said  defendants  as  in  said  bill  they  have  already 
prayed. 

And  plaintiff  prays  that  your  honors  will  make  such  orders 
and  decrees  preliminary  and  final  as  are  prayed  for  in  said 
bill  by  plaintiff  in  the  district  court  of  the  United  States  for 

the district  of ,  and  that  your  honors  will  also  make 

all  such  other  and  necessary  orders,  judgments,  and  decrees 
as  may  be  required  in  aid  of  said  bill,  and  that  your  honors 
will  take  ancillary  jurisdiction  with  the  said  district  court  of 

the  United  States  for  the district  of ,  and  will  give 

plaintiff  all  the  relief  which  may  be  necessary  to  accomplish 
the  purposes  of  filing  said  bill. 

And  plaintiff  prays  in  all  respects  as  in  said  bill  set  forth, 
and  prays  such  other  and  further  relief  as  the  nature  of  the 
case  may  require  and  to  your  honors  seem  meet. 

X.  &  X., 

R.  X.,  Solicitors  for  Plaintiff  in  said  Bill. 

F.  L., 

of  Counsel. 


No.  879. 

Supplemental  (1)    Ancillary  Bill  for  Foreclosure  of  Railway. 

[Caption.] 

Now  comes  the  A.  B.  Trust  Company,  plaintiff  in  the  above- 
entitled  and  numbered  cause,  and  brings,  with  the  leave  of 
the  court  first  had  and  obtained,  this,  its  supplementary  an- 
cillary bill   to   the  original   ancillary  bill   filed  by   it   in  this 

cause  on  the day  of ,  and  making  all  the  averments 

and  showing  unto  your  honors  the  same  facts  which  are  set 
forth  in  said  original  ancillary  bill,  further  shows  and  alleges: 


1330  SUITS    IN    EQUITY. 

That  since  the  filing  of  said  original  ancillary  bill  the  Hon. 
J.  S.,  judge  of  the  district  court  of  the  United  States  for  the 

district  of ,  in  the circuit,  to  wit,  on  the 

day  of ,  made  his  certain  decree  in  the  case  of  the  A.  B. 

Trust  Company,  trustee,  plaintiff,  v.  C.  &  D.  Railway  Com- 
pany and  M.  P,  Company,  defendants,  referred  to  and  set 
forth  in  said  original  ancillary  bill  filed  herein,  ordering, 
adjudging,  and  decreeing  that  S.  M.  and  H.  C.  be  appointed 
receivers  of  the  property  of  the  C.  &  D.  Railway  Company, 
covered  by  the  mortgages  made  by  the  said  defendant,  which 
are  sought  to  be  foreclosed  in  the  said  original  bill  of  the  A. 
B.  Trust  Company,  plaintiff,  with  power,  among  other  things, 
to  take  possession  of  all  the  said  mortgaged  property,  and  to 
operate,  and  cause  to  be  operated,  the  said  railroad  mortgaged 
as  aforesaid,  and  to  preserve  and  protect  all  of  the  said  mort- 
g^aged  property,  acting  in  all  things  under  the  order  of  the 

said  honorable  district  court  of  the  United  States  for  the 

district  of  ,  or  of  such  other  courts  as  may  entertain 

jurisdiction  of  parts  of  the  said  mortgaged  property  as  ancil- 
lary to  the  jurisdiction  of  said  district  court  of  ;  and 

with  leave  to  the  plaintiff  and  defendants,  and  each  of  them, 
to  apply  to  any  other  United  States  district  court  for  such 
order  or  orders  in  aid  of  the  primary  jurisdiction  vested  in 

said  district  court  of in  said  cause  as  may  have  ancillary 

jurisdiction  therein.  A  certified  copy  of  which  order  is 
attached  hereto,  and  made  a  part  hereof;  and  plaintiff  fur- 
ther shows  and  alleges  that  said  S.  M.  and  H.  C,  named  as 
receivers  aforesaid,  have  qualified  as  such,  in  the  manner  re- 
quired by  the  terms  of  said  decree  of  date,  ,  and  on  the 

day  of ,  took  possession  of  the  said  property,  and 

are  now  operating  and  causing  to  be  operated  the  said  rail- 
roads, mortgaged  as  aforesaid,  including  such  property  and 
railroads  as  are  situated  within  the  state  of  . 

The  plaintiff  now  renewing  its  prayer  made  in  said  ancil- 
lary bill  filed  on  the day  of ,  prays  that  your  honors 

will  make  such  orders  and  decrees  preliminary  and  final  as 


RECEIVERS ANCILLARY    PROCEEDINGS.  1331 

are  prayed  for  in  said  bill  by  plaintiff  in  the  district  court  of 

the  United  States  for  the district  of ,  and  that  your 

honors  will  also  make  such  other  and  necessary  orders,  judg- 
ments, and  decrees  as  may  be  required  in  aid  of  said  bill, 
and  that  your  honors  will  take  ancillary  jurisdiction  with 
the  said  district  court  of  the  United  States  for  the  dis- 
trict of ,  and  will  give  plaintiff  all  the  relief  which  may 

be  necessary  to  accomplish  the  purposes  of  filing  said  bill. 

And  plaintiff  prays  in  all  respects  as  in  said  bill  set  forth, 
and  prays  such  other  and  further  relief  as  the  nature  of  the 
case  may   require,   and  to   your   honors   seem  meet. 

X.  &  X., 
Solicitors  for  Plaintiff  in  said  Bill. 

(1)  Equity  Rules  34  and  35. 


No.  880. 
Decree  Taking  Ancillary  Jurisdiction.  (1) 

[Caption.] 

On  this day  of ,  came  on  to  be  heard  the  original 

and  supplemental  ancillary  bill  filed  by  plaintiff  in  this  cause, 
and  the  court  having  considered  the  same,  and  it  appearing 
to  the  court  that  the  A.  B.  Trust  Company,  trustee,  plaintiff 
herein,  has  already  filed  in  the  district  court  of  the  United 
States  for  the district  of ,  the  court  having  jurisdic- 
tion of  the  C.  &  D.  Railway  Company,  a  corporation  having 

its  principal  office  in  the  state  of  ,  a  bill  of  complaint 

against  said  C.  &  D.  Railway  Company  and  against  the  M. 
P.  Railway  Company,  a  corporation  existing  under  the  laws 

of  the  state  of ,  and  of  said  state  of ,  asking  for  the 

foreclosure  of  a  certain  indenture  of  mortgage,  dated  , 

known  as  the  general  consolidated  mortgage  of  the  said  C.  & 
D.  Railway  Company,  a  true  copy  of  which  bill  of  complaint 
is  now  on  file  in  this  cause.  And  it  further  appearing  that  in 
said   cause   now   pending   in   the   said   district   court  of  the 


1332  SUITS    IN    EQUITY. 

United  States  for  the  district  of ,  the  Hon,  J.  S.,. 

United   States  district  judge   for  the  circuit,   including 

said district  of ,  on  the day  of ,  made  his 

order    and    decree    sustaining    plaintiff's    application    for    a 

receiver,  and  afterwards,  to  wit,  on  the  day  of  , 

made  his  further  order  and  decree,  naming  and  appointing 
S.  M.  and  H.  C.  receivers  of  the  property  of  the  C.  &  D.  Rail- 
way Company,  covered  by  the  mortgages  made  by  the  said 
company  which  are  sought  to  be  foreclosed  in  the  said  origi- 
nal bill  of  the  A.  B.  Trust  Company,  plaintiff,  with  certain 
powers  and  under  certain  instructions,  as  fully  appears  in 
said  order,  a  certified  copy  of  which  is  attached  to  the  plain- 
tiff's supplemental  ancillary  bill  filed  herein ;  and 

It  further  appearing  that  a  portion  of  the  line  of  railway 
and  property  owned  by  the  said  C.  &  D.  Railway  Company, 
and  subject  to  the  lien  of  said  general  consolidated  mortgage, 
is  in  this  district  and  within  the  jurisdiction  of  this  court, 
and  that  by  the  terms  of  said  order  of  date ,  said  plain- 
tiff was  authorized  to  apply  to  any  other  United  States  district 
court  of  competent  jurisdiction  for  such  order  or  orders  in 
aid  of  the  primary  jurisdiction  vested  in  said  United  States 
district  court  for  the district  of as  may  take  ancil- 
lary jurisdiction  of  said  cause ;  and 

It  further  appearing  that  the  said  S.  M.  and  H.  C.  have 
qualified  as  such  receivers  by  taking  and  subscribing  the  oath 
of  office  and  executing  and  filing  bond  in  the  manner  and 
according  to  the  terms  of  the  ninth  paragraph  of  said  order 
and  decree : 

Now,  the  court  being  fully  advised,  and  being  moved  thereto 
by  the  solicitors  of  the  plaintiff, 

It  is  ordered,  adjudged,  and  decreed  that  this  court  take 
ancillary  jurisdiction   with   the  district   court  of  the   United 

States  for  the district  of in  said  cause  now  pending 

in  said  court,  wherein  the  said  A.  B.  Trust  Company,  trustee, 
is  plaintiff,  and  the  said  C.  &  D.  Railway  Company  and  said 
M.  P.  Railway  Company  are  defendants. 


RECEIVERS ANCILLARY    PROCEEDINGS.  1333 

It  is  further  ordered,  adjudged  and  decreed  that  the  said 
order  made  by  the  said  district  court  of  the  United  States  for 
the district  of ,.  of  date  ,  sustaining  the  appli- 
cation of  plaintiff  for  a  receiver,  and  also  the  said  order  and 

decree  of  said  court  made  on  the  of ,  naming  and 

appointing  S.  M.  and  H.  C.  receivers  of  the  property  of  the 
C.  &  D.  Railway  Company,  covered  by  the  mortgages  made 
by  the  said  company,  which  are  sought  to  be  foreclosed  in  the 
original  bill  of  the  A.  B.  Trust  Company,  with  certain  powers 
and  under  certain  instructions,  be  and  the  same  are  hereby 
ratified,  approved,  and  confirmed,  and  the  said  S.  M.  and 
H.  C.  are  hereby  vested  with  the  same  powers,  rights,  and 
privileges  as  are  conferred  by  said  order  of  said  district  court 

of  the  United  States  for  the  district  of  ,  of  date 

,  over  that  portion  of  the  line  of  railway  and  property 

owned  by  the  said  C.  &  D.  Railway  Company,  subject  to  a 
lien  of  the  mortgages  made  by  said  company  sought  to  be 
foreclosed  as  aforesaid,  as  is  in  this  district  and  within  the 
jurisdiction  of  this  court.  And  the  said  receivers  having 
already  taken  and  subscribed  the  oath  of  office,  and  executed 
bond  in  the  manner  prescribed  by  the  order  and  decree  of 

said  district  court  of  the  United  States  for  the  district 

of  ,  of  date  ,   they  are  hereby  authorized  to   take 

possession  of  said  property  and  to  act  as  such  receivers  with- 
out taking  further  oath  of  office  or  executing  further  bond. 

It  is  further  ordered  and  decreed  that  the  plaintiff  cause  to 
be  filed  in  this  court  certified  copies  of  all  orders  of  a  general 
nature  in  any  way  affecting  the  said  property  situated  within 
the  jurisdiction  of  this  court  made  by  the  said  district  court 
of  the  United  States  for  the district  of in  said  pri- 
mary cause  pending  in  said  court,  for  the  information  of  the 
court  and  all  persons  who  may  be  interested  in  said  cause. 

It  is  further  ordered  that  the  clerk  of  this  court  enter  on 
the  minutes  of  the  court  the  copy  of  the  said  order  of  the  said 
district  court  of  the  United   States  for  the  district  of 


1334  SUITS   IN    EQUITY. 

,  of  date  ,  immediately  following  the  entry  of  this 

order  and  decree.  A.  P., 

District  Judge. 

Ancillary  receivership  may  be  granted  on  ex  parte  application. 
Piatt  V.  Phila.  &  R.  R.  Co.,  54  Fed.  569.  But  see  Mercantile  Trust  Co. 
V.  Kanawha  &  O.  R.  R.  Co.,  39  Fed.  ZZT. 


No.  881. 
Order  Appointing  Ancillary  Receivers  for  a  Railroad  Property. 

\_Caption.'\ 

Upon  reading  and  "filing  the  verified  bill  of  complaint 
herein,  and  on  motion  of  counsel  for  complainant,  and  after 
appearance  by  the  defendants  and  due  notice  to  their  solicitors 
of  record,  and  due  deliberation  having  been  had,  it  is  ordered 
that  R.  S.  and  G.  P.,  who  have  heretofore,  in  the  suit  of  A.  B., 

against  the  C.  &  D.  Railroad  Company,  No.  ,  in  equity, 

been  appointed  receivers  of  the  property  and  assets  of  the 
C.  &  D.  Railroad  Company,  and  whose  receivership  was  there- 
after, by  order  dated  ,   made  in   a   suit  ip  said   court, 

wherein  the  Central  Trust  Company  of  New  York  was  com- 
plainant, and  the  C.  &  D.  Railroad  Company  was  defendant. 

No.  ,  in  equity,  extended  to  the  last  named  suit,  be,  and 

they  are  hereby,  appointed  as  such  receivers  in  this  cause,  of 
the  defendant,  the  C.  &  D.  Railroad  Company,  and  of  the 
property  of  said  defendant  as  set  forth  in  the  order  appointing 

them  as  made  in  said  cause  No.  ,  in  equity,  filed  therein 

July  25,  ,  to  which  reference  is  hereby  made,  with  the 

rights,  powers  and  privileges  as  in  said  order  set  forth,  and 
that  said  receivership  is  hereby  extended  to  this  cause. 


No.  882. 
Stipulation  as  to  Answers  to  Ancillary  Bill. 
[^Caption.l 

It  is  hereby  stipulated  and  agreed  on  the  part  of  the  solici- 
tors for  the  defendant,  the  C.  &  D.  Company,  to  take  notice 


RECEIVERS ANCILLARY    PROCEEDINGS.  1335 

as  of  this  date  of  the  ancillary  proceedings  herein  in  E.  &  F. 
without  service  of  subpoena,  and  that  answers  therein  will  be 

filed  on  the  day,  ,  19 — . 

Dated  New  York,  December  . 

X.  &  X., 
Solicitors  for  Complainant. 
Y.  &  Y., 
Solicitors  for  Defendant,  E.  &  F.  Ry.  Co. 


No.  883. 

Appearance  of  Defendant  to  Ancillary  Bill. 

The  District  Court  of  the  United  States  for  the District 

of . 

The  A.  B.  Trust  Company,  Complainant, 

vs. 
The  C.  &  D.  Railway  Company  et  al.,  De- 
fendants. 

On  this  day  of  ,  come  the  defendant,  the  E.  & 

F.  Railway  Company,  one  of  the  defendants  in  the  above 
entitled  cause,  and  enter  this,  its  appearance,  in  the  ancillary 
bill  filed  in  said  cause  in  this  court.  Y.  &  Y., 

Of  counsel  for  E.  &  F.  Railway  Company,  Defendant. 


No.  884. 
Answer  of  Defendant  to  Ancillary  Bill  of  Foreclosure. 

The  District  Court  of  the  United  States  for  the District 

of  . 

The  A.  B.  Trust  Company,  Complainant, 

vs. 
The  C.  &  D.  Railway  Company  et  al.,  De- 
fendants. 

The  C.  &:  D.  Railway  Company,  a  corporation  created  by 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 


1336  SUITS    IN    EQUITY. 

,  now,  and  at  all  times  hereafter,  saving  and  reserving 


unto  itself  all  and  all  manner  of  benefit  of  exception  which 
can  or  may  be  had  or  taken  to  the  many  errors,  uncertainties 
and  imperfections  in  the  said  ancillary  bill  of  complaint,  for 
answer  unto  the  said  ancillary  bill,  or  unto  so  much  thereof 
as  this  defendant  is  advised  it  is  material  or  necessary  for  it 
to  make  answer  unto,  answering  saith : 

This  defendant  admits  that  the  complainant,  the  A.  B. 
Trust  Company,  is  a  corporation  created  by  and  existing  un- 
der and  by  virtue  of  the  laws  of  the  state  of ;  and  that 

it  is  a  citizen  and  resident  of  the  said  state  of ,  and  that 

it   has   heretofore   filed    in   the   District   Court   of  the  United 

States  for  the  District  of  its  bill  of  complaint  against 

the  defendants,  the  C.  &  D.  Railway  Company,  and  that  in 
and  by  the  said  bill  of  complaint  a  foreclosure  of  a  certain 

indenture  of  mortgage  or   deed  of  trust,   dated  ,   and 

known  as  the  General  Consolidated  Mortgage  of  this  defend- 
ant, is  sought  to  be  foreclosed.  But  for  the  allegations  and 
averments  of  the  said  bill,  and  for  the  legal  sufficiency  and 
eflfect  thereof,  this  defendant  refers  to  the  said  bill  when  the 
same  shall  be  produced  herein,  and  denies  any  and  all  the 
averments  of  the  said  ancillary  bill  herein  in  anywise  con- 
trary to  or  inconsistent  therewith. 

This  defendant,  further  answering,  admits,  on  information 
and  belief,  that  a  portion  of  its  line  of  railway  and  property 
is  in  this  district  and  within  the  jurisdiction  of  this  court,  but 
it  neither  admits  nor  denies  that  the  said  property,  or  any  part 
thereof,  is  covered  by  or  subject  to  the  lien  of  the  said  General 
Consolidated  Mortgage,  and  on  this  behalf  it  leaves  the  com- 
plainant to  make  such  proof  as  it  may  be  advised. 

The  defendant,  further  answering,  refers  to  its  answer  to 
the  said  original  bill  of  complaint  as  heretofore  duly  filed  in 
the  office  of  the  clerk  of  the  District  Court  of  the  United 

States  for  the  District  of ,  and  files  herewith  a  true  copy 

and  prays  that  your  honors  will  take  the  same  as  a  part  of  its 
answer  herein.     And  the  defendant   further  shows  that  the 


RECEIVERS ANCILLARY    PROCEEDINGS.  1337 

Statements  contained  in  the  said  answer  were,  as  it  is  informed 
and  believes,  verily  true  when  the  same  was  verified  and  filed 
herein  as  aforesaid,  and  it  repeats  all  of  the  said  allegations, 
and  says  that  the  same  are  now  true,  except  so  far  as  they 
may  have  been  modified  by  this  litigation,  and  by  circum- 
stances transpiring  since  said  answer  was  filed.  And  the  de- 
fendant claims  the  same  benefit  from  the  said  answer  as  afore- 
said as  if  it  had  pleaded  to  all  the  several  matters  therein 
stated  or  any  of  them,  or  as  if  it  had  demurred  to  the  said  bill 
or  to  this  ancillary  bill. 

All  of  which  matter  and  things  the  said  defendant  is  ready 
to  aver,  maintain  and  prove  as  this  honorable  court  shall  di- 
rect, and  humbly  prays  to  be  hence  dismissed,  with  its  reason- 
able costs  and  charges  in  this  behalf  most  wrongfully  sus- 
tained. 

The  C.  &  D.  Railway  Company, 

By  K.  E.,  First  Vice  President. 

Attest: 

[Seal.']     H.  B..  Secretary. 

United  States  of  America,  ) 

District  of .       ) 

K.  E.,  being  duly  sworn,  says:  That  he  is  the  first  vice 
president  of  the  C.  &  D.  Railway  Company,  defendant  here- 
in; that  he  has  read  the  foregoing  answer  and  knows  the 
contents  thereof;  that  the  allegations  therein  contained,  as  far 
as  they  relate  to  his  own  acts,  are  true,  and  as  far  as  they  re- 
late to  the  acts  of  others  he  believes  them  to  be  true. 

That  in  regard  to  all  matters  and  things  in  the  foregoing 
answer  alleged  which  are  not  within  the  personal  knowledge 
of  this  deponent,  the  deponent  has  been  fully  informed,  and 
he  believes  that  the  same  are  true.  K.  E. 

Sworn  to  before  me  this day  of ,  A,  D.  . 

[Seal.-]  -  J.  N., 

U.  S.  Commissioner  for  the District  of . 


13'38  SUITS    IN    EQUITY. 

No.  885. 
Order  Appointing  Special  Master  in  Ancillary  Suit. 

\_Caption.^ 

It  having  been  represented  to  the  court  that  claims  are 

arising  in against  the  receivers  appointed  and  confirmed 

in  this  case,  growing  out  of  the  operations  of  the  railway 

property  in ,  for  stock  killed,  personal  injuries,  damages 

for  short  delivery,  etc. ;  and  it  appearing  to  the  court  that  such 
claims  will  constantly  arise  during  the  pendency  of  the  re- 
ceivership in  this  case,  and  that  such  claims  should  be  adjudi- 
cated, settled  and  paid  without  requiring  the  parties  interested 
to  seek  relief  from  the  District  Court  of  the  United  States  in 
,  having  original  jurisdiction : 

It  is  therefore  ordered  by  the  court  that  E.  M.,  Esq.,  be  and 
he  is  hereby  appointed  Special  Master  in  Chancery  for  this 
cause;  and 

It  is  further  ordered  that  all  claims  for  damages  of  every 
kind  that  may  arise  against  the  receivers,  growing  out  of 
their  operation  of  the  C.  &  D.  in ,  may  be  filed  and  pre- 
sented to  said  Special  Master,  who  shall  examine  and  report 
thereon  in  due  course. 

That  the  Special  Master  is  directed  to  give  reasonable  pub- 
lic notice  of  this  order,  and  is  authorized  to  hold  sessions 
pending  examination  of  claims  at  such  points  as  he  may 
designate. 

He  shall  report  his  conclusions  to  the  court  from  time  to 
time,  and  such  reports  shall  stand  confirmed,  unless  excepted 
to  within  thirty  days  from  the  filing  thereof,  upon  proper 
order  entered  according  to  the  rules  in  the  chancery  order 
book. 

Dated . 


RECEIVERS ANCILLARY    PROCEEDINGS.  1339 

No.  886. 

Order  to  Print  the  Records  in  Ancillary  Suit. 

The  District  Court  of  the  United  States  for  the District 

of . 

The  A.  B.  Company,  Trustee,  Complainant, 
vs. 

The  C.  &  D.  Railway  Company,  and  the 
E.  &  F.  Railway  Company  et  al.,  De- 
fendants. 

Upon  motion  of  the  complainant,  it  appearing-  to  the  court 
that  the  bill  filed  in  this  cause  against  the  defendants  is  pend- 
ing in  this  court  and  in  divers  other  courts  within  this  circuit 

and  in  the  state  of  ,  seeking  the  same  relief;  it  further 

appearing  that  part  of  the  property  of  the  defendant,  the 
C.  &  D.  Railway  Company,  and  other  defendants  named  in 

the  amended  bill  filed  herein,  is  within  the  District  of 

,  it  is 

Ordered,  adjudged  and  decreed,  that  upon  complainant's 
filing  in  this  court  a  copy  of  the  orders  made  by  the  District 

Court  of  the  United  States  for  the  District  of ,  at  , 

the  court  having  primary  jurisdiction  in  this  cause,  the  filing- 
thereof  shall  be  a  sufficient  compliance  with  the  orders  made 
heretofore  requiring  such  orders  to  be  filed  pending  the  receiv- 
ership and  the  prosecution  of  this  cause.     It  is  further 

Ordered,  that  the  clerk  of  the  said  court  at  be  or- 
dered, and  he  is  hereby  authorized  and  directed,  to  cause  to 
be  printed  the  records  in  the  above  entitled  cause,  including 
the  general  orders  made  herein  from  time  to  time,  printing 
the  same  by  successive  paging,  and  in  as  nearly  chronological 
order  as  is  convenient,  and  that  in  printing  the  same  he  do  not 
duplicate  the  orders  made  by  the  District  Court  of  the  United 

States  for  the  District  of ,  which  have,  by  orders  of  said 

court,  been  printed  and  filed  in  this  court,  but  that  when  neces- 
sary he  refer  to  them  by  reference  to  case  No. ,  in  equity. 


1340  SUITS    IN    EQUITY. 

pending  at ,  giving  the  page  in  said  record  of  said  printed 

order.     It  is  further 

Ordered,  that  said  clerk  cause  to  be  sent  to  the  counsel  rep- 
resenting the  complainant  and  the  defendants  in  said  cause 
two  copies  to  each  firm  as  the  same  are  printed,  and  two 
copies  to  each  of  the  receivers  and  their  counsel.     It  is  further 

Ordered,  that  the  receivers  in  said  cause  pay  all  proper 
bills  for  the  printing  herein  ordered  as  the  same  may  become 
due  from  time  to  time,  and  they  have  credit  for  such  disburse- 
ments in  their  accounts. 


No.  887. 

Petition  of  Defendant  for  an  Order  Authorizing  Receivers  to 
Deliver  to  it  the  Possession  of  Railway  Property  in  Their 
Hands. 

The  District  Court  of  the  United  States  for  the District 

of . 

The  A.  B.  Trust  Company,  Complainant, 

vs. 
The  C.  &  D.  Railway  Company  et  al.,  De- 
fendants. 

The  petition  of  the  C.  &  D.  Railway  Company,  defendant 
herein,  respectfully  shows  to  this  court: 

First.  That  this  is  a  cause  ancillary  to  the  main  suit  be- 
tween the  same  parties,  in  the  District  Court  of  the  United 
States  for  the  District  of . 

Second.  That  in  the  said  main  suit  the  C.  &  D.  Railway 
Company  hath  heretofore,  presented  its  petition  praying  for 
an  order  of  the  court  requiring  the  receivers  of  the  C.  &  D. 
Railway  to  turn  over  and  deliver  possession  of  the  said  rail- 
way and  property  to  the  said  C.  &  D.  Railway  Company; 
and  that  prior  to  the  submission  of  the  petition  the  receivers 
filed  a  report,  and  that  upon  the  said  petition  and  report  the 
court  did,  upon  the  day  of  ,  enter  an  order  con» 


RECEIVERS ANCILLARY    PROCEEDINGS.  1341 

tormably  to  the  prayer  of  the  said  petition,  and  that  copies  of 
the  said  petition,  and  of  the  said  report  and  order  of  court,  are 
hereto  annexed  and  marked  respectively  Exhibits  "  A,"  "  B  " 
and  "  C,"  and  made  a  part  hereof. 

Wherefore,  your  petitioner  prays  that  the  said  order  of  the 
court  may  be  spread  upon  the  records  in  this  court,  and  may 
be  by  this  court  confirmed  and  approved,  and  made  the  order 
of  this  court  in  this  ancillary  cause  so  far  as  the  same  may 
be  necessary  in  order  to  protect  all  the  rights  of  all  the  parties 
in  interest  as  against  the  property  within  the  jurisdiction  of 
this  court. 

The  C.  &  D.  Railway  Company, 
By  J.  W.,  Third  Vice  President. 
Attest: 

[Seal.}     H.  B.,  Secretary. 

R.  &  R., 
Solicitors  for  C.  &  D.  Railway  Company. 

State  of , 

County  of  ,  ss. 

H.  B.,  being  duly  sworn,  deposes  and  says:  That  he  is 
the  secretary  of  the  C.  &  D.  Railway  Company,  petitioner 
herein ;  that  he  has  read  the  foregoing  petition  and  knows  the 
contents  thereof;  that  the  allegations  therein  contained,  as 
far  as  they  relate  ta  his  own  acts,  are  true,  and  as  far  as  they 
relate  to  the  acts  of  others  he  believes  them  to  be  true. 

That  in  regard  to  all  matters  and  things  in  the  foregoing 
petition  alleged  which  are  not  within  the  personal  knowledge 
of  this  deponent,  the  deponent  has  been  fully  informed,  and 
he  believes  that  the  same  are  true.  H.  B. 

Sworn  to  before  me  this day  of ,  A.  D. . 

[Seal.']     ].,  Notary  Public,  County. 


1342  SUITS   IN    EQUITY. 

No.  888. 
Ancillary  Decree. 

[Caption.] 

It  appearing  to  the  court,  by  certified  copy  herewith  filed, 
that  in  the  main  suit  between  the  same  parties  in  the  district 

court  of  the  United  States  for  the  district  of  ,  to 

which  this  cause  is  ancillary,  there  was  duly  entered,  on  the 

day  of ,  the  following  decree :  [Set  forth  decree  in 

full] 

It  is  hereby  ordered,  adjudged,  and  decreed  that  the  said 
decree  be  spread  upon  the  records  this  court,  and  that  the 
said  decree  be  and  hereby  is  approved  and  confirmed,  and 
made  the  decree  of  this  court  in  this  ancillary  cause  so  far  as 
the  same  may  be  necessary  to  protect  all  the  rights  of  all  the 
parties  in  interest  as  against  the  property  within  the  jurisdic- 
tion of  this  court.  A.   P., 

Dated .  District  Judge. 


No.  889. 

Ancillary  Order,  Confirming  and  Directing  Sale  to  a 
Reorganized  Manufacturing  Company. 

[Caption.] 

On  reading  and  filing  the  report  of  S.  M.  and  H.  C,  receiv- 
ers of  the  property  and  assets  of  the  C.  D.  Co.,  duly  veri- 
fied on  the day  of  ,  1893,  with  the  exhibits  as  in 

said  report  specified,  including  a  copy  of  all  the  papers  pre- 
sented to  the  chancellor  of  New  Jersey,  and  upon  which  an 

order  was  made  by  the  said  chancellor  on  the  day  of 

,  1893',  and  duly  entered,  whereby  the  said  chancellor  at 

the  domicile  of  the  said  corporation  did  order,  adjudge,  and 
decree  that  the  sale  theretofore  made  by  S.  M.  and  H.  C, 
receivers  of  the  said  C.  D.  Co.,  of  the  assets  and  property  of 
said  corporation  to  G.  C,  E.  T.,  and  G.  H.  should  be  ratified, 
approved,  and  confirmed,  and  by  which  order  the  said  receiv- 
ers were  authorized  and  directed  to  carry  out  the  sale;  and 


RECEIVERS—ANCILLARY    PROCEEDINGS.  1343 

whereas  it  appears  that  prior  to  the  making  of  said  order 
by  the  said  chancellor  of  New  Jersey  the  said  receivers  pre- 
sented their  report  to  him  bearing  the  date  of  the day 

of ,  1893,  reporting  the  bid  made  by  the  reorganization 

committee  for  the  property  and  assets  of  the  C.  D.  Co.,  or  for 
the  entire  property,  subject  to  existing  liens  and  obligations, 

the  sum  of dollars,  payable  upon  confirmation  of  sale, 

dollars  in  cash,  and dollars  in  the  first  mortgage, 

six  per  cent,  gold  bonds  of  the  U.  C.  Co.,  being  a  new  cor- 
poration formed  to  acquire  said  property  and  carry  out  the 
reorganization,  and  that  they  had  accepted  the  same  for  the 
reasons  set  forth  in  their  said  report,  subject  to  the  approval 
of  the  court,  and  that  thereupon  it  was  ordered  by  the  said 
chancellor  that  notice  should  be  given  to  each  and  every 
stockholder  and  creditor  by  delivering  or  mailing  to  him  a 
copy  of  the  order  to  show  cause  made  upon  such  petition, 

returnable  upon  the day  of ,  1893,  why  the  same 

should  not  be  granted,  and  that  each  and  every  of  the  said 
stockholders  and  creditors  had  an  opportunity  of  appearing 
and  of  being  heard  thereon,  and  that  upon  the  return  day 
thereof,  after  such  service  duly  made,  the  said  chancellor  did, 
after  hearing  all  parties,  make  the  order  aforesaid;  and 
whereas  it  appears  to  the  court  that  the  property  of  the  said 
C.  D.  Co.  has  been  sold  for  the  highest  price  that  could  be 
obtained  therefor,  and  that  it  is  for  the  interest  of  the  credi- 
tors and  stockholders  alike  that  said  sale  should  be  confirmed. 
Now,  therefore,  on  motion  of  Messrs.  X.  &  X.,  solicitors 
for  and  of  counsel  with  the  said  receivers,  on  hearing  Messrs. 
Z.  &  Z.,  counsel  for  the  receivers,  it  is  ordered  by  the  court 
that  the  sale  heretofore  made  by  S.  M.  and  H.  C,  receivers 
of  the  C.  D.  Co.,  to  G.  C,  E.  T.,  and  G.  H.,  be  and  the  same 
is  hereby  ratified,  approved,  and  confirmed,  and  the  said  re- 
ceivers are  hereby  authorized,  ordered,  and  directed  to  grant, 
bargain,  sell,  assign,  transfer,  convey,  set  over,  and  confirm 
unto  the  said  purchasers,  as  joint  tenants,  or  to  their  assigns, 
all  the  real  estate  and  personal  estate,  good  will,  choses  in 


1344 


SUITS    IN    EQUITY. 


action,  effects  and  assets  of  the  said  defendant  corporation, 
the  C.  D.  Co.,  for  the  consideration  aforesaid,  and  npon  the 
terms  set  forth  in  the  bid  made  by  said  pnrchasers. 

And  the  said  receivers  are  hereby  anthorized,  ordered,  and 
directed  to  execnte  and  deliver  any  and  all  deeds,  bills  of 
sale,  conveyances,  assignments,  transfers,  and  other  instru- 
ments whatsoever  necessary,  proper,  or  advisable  for  the  vest- 
ing of  the  said  property  and  effects  so  sold  in  the  said  trus- 
tees or  their  assigns. 

And  it  is  further  ordered,  adjudged,  and  decreed  that  upon 
the  delivery  of  deeds  and  conveyances  by  the  said  receivers 
to  the  said  purchasers,  and  upon  payment  of  the  considera- 
tion agreed  upon  and  the  performance  of  the  conditions  of 
the  sale  by  said  purchasers,  that  all  the  right,  title,  and  in- 
terest of  the  C.  D.  Co.  of,  in,  and  to  all  real  estate,  personal 
property,  good  will  of  business,  choses  in  action,  stock,  or  other 
effects  or  property,  or  things  of  value  whatsoever,  shall  be 
and  become  fully  vested  in  the  said  purchasers  or  their  as- 
si^j^ns,  fully  and  effectually  as  the  said  receivers  may,  can,  or 
ought  to  convey  the  same,  and  as  fully  and  effectually  as  this 
court  can  authorize  or  empower  them  to  convey  the  same. 

J.  S., 

Dated .  District  Judge. 


JUDICIAL    SALES.  1345 


JUDICIAL  SALES.* 


No.  890. 

Order  for  Sale, 

The  United  States  of  America. 
District  of ,  ss. 


The  President  of  the  United  States  of  America  to  the  Marshal 

of  the  District  of . 

You  are  hereby  commanded,  in  pursuance  of  an  order  of 

the  district  court  of  the  United  States,  for  the  district 

of  aforesaid,  made  at  the  term  thereof,   1894,  in 

the  case  of  A.  B.  against  C.  D.,  to  proceed  without  delay, 
and  cause  to  be  appraised,  advertised,  and  to  sell  according 
to  law  [here  describe  property],  and  that  your  proceedings 
in  the  premises  you  make  known  to  our  said  district  court  of 

the  United  States,  within  and  for  the  district  of  , 

according  to  law,  and  have  you  then  and  there  this  writ. 

[Add  teste  according  to  court  issuing  the  writ.] 


No.  891. 

Marshal's  Appraisement  of  Real  Estate. 

The   United    States   of   America,  '\  In  the  district  court, 
for  the                          > 
District   of   ,    ss.        )  No. . 


A.  B.,  plaintifif,  against  C.  D.,  defendant. 

An  appraisement  taken  at  the  city  of  ,  in  the  county 

of ,  and  state  of ,  and  within  the  district  aforesaid. 


*  See  Simkins,  A  Federal  Equity  Suit,  3d  ed.,  pp.  594-597;  27  Stat. 
L.  751,  provides  for  the  place  of  the  sale  of  realty  and  personalty, 
under  any  order  or  decree  of  a  United  States  court,  and  for  the  manner 
of  publication  where  realty  is  to  be  sold.  As  to  the  scope  of  this 
statute,  see  In  re  Britannia  Min.  Co.,  203  Fed.  450.  121  C.  C.  A.  395; 
Nevada  Nickel  Syndicate  v.  National  Nickel  Co.,  103  Fed.  399. 


1346  SUITS    IN    EQUITY. 

on  ,  the  (lay  of  ,  1894,  before  H.  C,  marshal 

of  the  United  States  for  the  district  of  ,  in  obedi- 
ence to  the  command  of  a  certain  order  of  sale  [or 
as  may  be]  in  the  above  entitled  cause  issued  from  the  dis- 
trict  court   of  the   United    States   for   said   district   of 

,  and  to  him  directed,  dated  at  the  city   of ,  stata 

Pursuant  to  said  order  of  sale,  the  said  H.  C,  marslial  of 

the  United  States  for  the district  of aforesaid,  did, 

on  the day  of ,  1894,  in  compliance  therewith,  and 

according  to  tke  statute  in  such  case  made  and  provided, 
summon  an  inquest  of  three  judicious,  disinterested  free- 
holders, resident  in  said  district,  to  wit :  E.  F,,  G.  H.,  and  I. 
J.,  who  are  duly  sworn  and  charged  to  appraise  at  its  true 
value  in  money  the  lands  and  tenements  of  the  said  C.  D., 
defendant,  described  in  the  words  and  figures  following,  to 
wit :  \Here  describe  the  property^ 

Whereupon  the  said  appraisers,  each  of  whom  doth  for 
himself  hereby  certify  that  he  is  a  resident  freeholder  in 
said  district,  say,  upon  their  oaths,  that  the  premises  herein- 
before described,  upon  actual  view  thereof,  are  of  the  \«lue  of : 

First  tract, dollars. 

Second  tract, dollars. 

Third  tract, dollars. 

As  a  whole, dollars. 

In   testimony  whereof,  as  well  I,  H.  C,  marshal   of  the 

United  States  for   the district  of ,  as  the  inquest 

aforesaid,  have  to  this  appraisement  set  our  hands  and  seals 
on  the  day  and  year  first  above  written. 
H.  C,  U.  S.  Marshal district  of 


{Seal?[ 

E.  F. 

\seal\ 

G.  H. 

[5tf«/.] 

I,  J. 

\Seai:\ 

The  United  States  of  America, 

District  of ,  ss. 

I  do  hereby  certify  that  the  above  named  appraisers  were 


JUDICIAL    SALES.  1347 

freeholders  and  rcsiucnCs  of  said  district,  and  that  they  were 
duly  summoned  and  sworn  by  me,  according  to  law,  on  the 
day  and  year  first  above  written.  H.  C, 

United  States  Marshal  for  the 
district  of . 


No.  892. 
Marshal's  Report  of  Sale  of  Real  Estate. 

The  United  States  of  America, 
District  of . 

Received  this  writ  the day  of ,  1894,  and,  pur- 
suant to  its  command,  the  undersigned  did,  on  the day 

of ,  1894,  on  the  premises,  near  the  town  of ,  county 

of ,  state  of ,  and  within  the  district   aforesaid,  by 

the  oaths  of  E.  F.,  G.  H.,  and  I.  J.,  three  judicious,  disinter- 
ested freeholders,  resident  in  said  district,  cause  to  be  ap- 
praised at  their  true  value  in  money  the  lands  and  tenements 
described  in  said  order,  to  wit:  [Here  set  forth  a  full  descrip- 
tion of  lands  and  tenements^ 

The  report  of  said  appraisers  is  hereto  attached,  marked 
"A,"  and  made  part  hereof.  A  copy  of  said  appraisement 
was,  by  the  undersigned,  immediately  deposited  with  the 
clerk  of  the  district  court  of  the  United  States  for 
the  district  of ,  to  1)e  l^y  him  filed  in  said  cause. 

Also,  notice  of  the  sale  of  said  premises  was  by  the  under- 
signed given  in    the  [^^^<?  name  of  paper\  a  weekly 

newspaper,  published  and  of  general  circulation  in  the  county 

of ,  state  of ,  where  said  lands  are  situate,  for  more 

than  thirty  days  prior  to  the  day  of  sale,  and  appeared  in 
said  paper  weekly  on  \sct  forth  the  days\  as  will  more  fully 
appear  by  reference  to  the  proof  of  publication  herewith 
filed,  marked  "B." 

Afterwards,  to  wit:  on  the day  of ,  1894.  at  the 

front  door  of  the  court-house,  in  the  town  of ,  county  of 

and  state  of ,  at  the  hour  of  one  o'clock,  solar  time, 


1348  SUITS    IN    EQUITY, 

the  time  and  place  named  in  said  advertisement  of  sale,  said 
lands  and  tenements  were  by  the  undersigned  offered  for  sale 
at  public  outcry,  in  the  presence  and  hearing  of  a  number  of 
persons  present  and  having  an  opportunity  of  bidding  thereat, 

when  came  J.  S.,  who  bid  to  pay  therefor  the  sum  of 

dollars,  and  said  sum  being  more  than  two-thirds  the  ap- 
praised value  of  said  premises,  and  being  the  highest  and  best 
bid  offered  for  said  premises,  I  therefore  publicly  struck  off 
and  sold  to  the  said  J.  S.  the  said  lands  and  tenements  for  the 

said  sum  of  dollars,  and  the  undersigned  brings  said 

money  into  court,  and  awaits  its  further  order  in  the  prem- 
ises. H.  C, 

United  States  Marshal  for  the 
district  of . 


No.  893. 

Appointment  of  Special  Masters  to  Sell  Property  (i). 

[Caption.'] 

It  is  further  ordered  that  such  sale  shall  be  made  without 
valuation,  appraisement,  redemption  or  extension,  and  shall 

be  made  by  and  under  the  direction  of  E.  M.,  of ,  and 

H.  C,  Esq.,  of  who  are  hereby  appointed  Spe- 
cial Masters  for  that  purpose,  and  who  are  directed  to  make 
and  conduct  said  sale,  and  to  execute  a  deed  or  deeds  of  con- 
veyance of  the  property  sold,  to  the  purchaser  or  purchasers 
thereof,  upon  an  order  confirming  such  sale  and  upon  pay- 
ment or  settlement  of  the  purchase  price  bid  as  hereinafter 
provided.  Said  sale  shall  be  made  at  public  auction  to  the 
highest  bidder,  at  the  terminal  freight  station  of  the  respond- 
ent railroad  company  on street,  in  the  city  of ,  in 

the  state  of ,  on  the  property  to  be  sold,  on  a  day  and 

at  an  hour  to  be  fixed  by  said  Special  Masters,  at  the  request 
of  the  solicitors  for  the  complainant  or  upon  further  order  of 
the  court,  and  notice  of  the  time,  place  and  terms  of  said  sale, 


JUDICIAL   SALES.  1349 

describing  briefly  tlie  property  to  be  sold  and  referring  to 
this  decree,  shall  be  published  at  least  once  a  week  for  six  suc- 
cessive weeks  preceding  the  date  of  such  sale,  in  at  least  one 
newspaper  in  each  of  the  following  places,  to  wit,  the  city  of 

,  in  the  state  of  ;  the  city  of  ,  in  the  state  of 

;  the  city  of  ,   in  the  state  of  ,  and  the  city 

of  ,  in  the  state  of .     The  Special  Masters  may,  at 

the  request  of  the  complainant's  solicitors,  adjourn  or  post- 
pone said  sale  and  may.  without  further  notice,  proceed  with 
the  sale  on  any  day  to  which  the  same  may  thus  have  been 
adjourned,  or  they  may  give  such  further  notice  of  sale  in 
addition  to  the  notice  above  described  or  of  any  adjournment 
thereof,  as  the  complainant's  solicitors  may  request. 

(1)  This  or  a  similar  clause  is  usually  inserted  in  a  decree  ordering 
a  sale  of  property.  See  Foster's  Fed.  Prac,  5th  ed.,  Sec.  394,  for 
judicial  sales  by  masters. 


No.  894. 

Advertisement  of  Railway  Foreclosure  Sale. 

The  District  Court  of  the  United  States  for  the Dis- 
trict of . 

Master's  Sale  under  Decree  of  Foreclosure  in  the  Matter  of 
the  C.  &  D.  Railroad  Company. 

The  A.  B.  Trust  Company,  Complainant  ^ 

vs.  \  In  Equity. 

The  C.   &  D.   Railroad   Company  et  al.  fNo. . 

Defendants.  J 

Whereas,  at  a  term  of  the  District  Court  of  the  United 

States  for  the District  of ,  held  at  the  city  of , 

in  the  state  of ,  on  the day  of ,  a  decree  was  en- 
tered in  the  above  entitled  suit  foreclosing  the  mortgage  of 
said  defendant,  the  C.  &  D.  Railroad  Company,  mentioned 
and  described  in  said  complainant's  bill  of  complaint;  and 

Whereas,  it  is  therein  ordered,  adjudged  and  decreed  that 
all  the  corporate  property  now  owned  or  hereafter  to  be  ac- 


1350  SUITS    IN    EQUITY. 

quired  by  the  said  C.  &  D.  Railroad  Company  in  the  state  of 
Kansas  and  crther  states,  and  all  its  estates,  right,  title,  inter- 
est and  equity  of  redemption  therein ;  that  is  to  say,  all  of  its 
railroad  now  constructed  and  in  operation  and  yet  to  be  con- 
structed, including  extensions,  branches,  spurs  and  side- 
tracks, and  including  right  of  way,  roadbed,  superstructures, 
iron,  steel,  rails,  ties,  splices,  chains,  bolts,  nuts  and  spikes, 
all  land  and  depot  grounds,  station  houses  and  depots,  via- 
ducts, water  tanks,  bridges,  timber  materials  and  property 
purchased  or  to  be  purchased  or  owned  by  it,  for  the  construc- 
tion, equipment  or  operation  of  said  road,  all  machine  shops, 
tools,  implements  and  personal  property  used  therein  or  upon 
or  along  said  railroad,  or  at  its  stations ;  all  engines,  tenders, 
cars  and  machinery,  and  all  kinds  of  rolling  stock,  whether 
now  owned  or  hereafter  purchased  by  said  railroad  company, 
and  all  other  property  of  said  company  now  owned  or  here- 
after to  be  acquired,  and  all  its  rights  and  privileges  therein 
or  appertaining  thereto,  and  all  revenues,  tolls  and  income  of 
said  railroad  and  property,  and  all  franchises  and  rights  of 
said  railroad  company,  and  all  property  and  rights  acquired 
and  hereafter  to  be  acquired  by  virtue  and  under  authority 
thereof;  excepting,  however,  such  lands  now  owned  or  here- 
after acquired  by  said  railroad  company  as  are  not  or  may  not 
be  necessary  or  used  for  right  of  way,  depot  grounds  of  said 
railroad,  or  in  operating  the  same,  be  sold  under  the  direction 
of  P.  D.,  the  undersigned  Special  Master,  and  the  proceeds 
of  such  sale  appHed  to  the  satisfaction  of  said  judgment,  in- 
terests and  costs,  except  such  as  is  otherwise  provided  for  in 
said  decree;  and 

Whereas,  it  is  further  ordered,  adjudged  and  decreed  that 
said  Special  Master  shall  sell  said  property  for  cash,  or  for 
cash  and  bonds,  and  as  an  entirety,  and  without  appraise- 
ment and  without  the  benefit  of  any  stay,  valuation  or  re- 
demption laws,  at  public  auction,  to  the  highest  bidder  there- 
for, at  the  city  of ,  in  the  state  of ;  and 


JUDICIAL    SALES.  1351 

Whereas,  it  is  further  ordered,  adjudged  and  decreed  that 
notice  of  the  time  and  place  of  said  sale  shall  be  given  by  said 
Special  Master  by  advertising  the  same  at  least  three  times 
in  each  week  for  the  term  of  five  v^eeks  preceding -the  day 
of  sale,  in  some  newspaper  published  in  the  city  of  Boston, 
in  some  newspaper  published  in  the  city  of  New  York,  and 
in  some  newspaper  published  in  the  city  of  Topeka,  state  of 
Kansas,  and  also  once*  a  week  for  four  weeks  in  some  news- 
paper published  in county, ;  and  that  such  sale  shall 

be  had  at  such  time  and  place  as  said  Special  Master  shall 
in  Said  notices  of  said  sale  appoint ;  and 

Whereas,  it  is  further  ordered,  adjudged  and  decreed  that 
said  Special  Master  shall  receive  no  bid  at  such  sale  for  a 
less  sum  than  one  million  dollars  ($1,000,000),  and  no  bid 
from  any  person  who  shall  not  first  deposit  with  him  as  a 
pledge  that  such  bidder  will  make  good  the  bid  in  case  of  its 
acceptance,  the  sum  of  seventy-five  thousand  dollars  ($75r 
000)  in  money  or  said  bonds  secured  by  said  mortgage  to  the 
complainant  to  the  amount  of  two  hundred  thousand  dollars 
($200,000),  exclusive  of  interest;  the  deposit  so  received  from 
the  successful  bidder  shall  be  applied  on  account  of  the  pur- 
chase price;  the  balance  of  the  purchase  price  may  be  paid 
either  in  cash,  or  the  purchaser  may  satisfy  the  same  in  whole 
or  in  part  by  paying  over  and  surrendering  any  of  the  out- 
standing and  unpaid  receiver's  certificates,  and  by  properly 
releasing  and  discharging  any  claims  which  have  heretofore, 
or  may  be  hereafter,  adjudged  by  this  court  to  be  valid  and 
prior  in  right  to  the  lien  of  said  mortgage,  and  by  presenting 
and  surrendering  said  first  mortgage  bonds  and  the  overdue 
and  unpaid  coupons  pertaining  thereto.  For  more  particular- 
ity, both  as  to  the  property  to  be  sold  and  the  terms  of  the 
sale,  reference  is  made  to  the  decree  of  foreclosure  entered  in 
the  above  suit. 

Now,  therefore,  public  notice  is  hereby  given  that  I,  P.  D., 
Special  Master,  in  pursuance  of  the  provisions  of  said  decree, 
will,  on  Monday,  the day  of ,  A.  D.  ,  between 


1352  SUITS    IN    EQUITY, 

the  hours  of  11  o'clock  a.  m.  and  2  o'clock  p.  m.  of  said  day, 

in  the  city  of ,  in  the  state  of ,  at  the  front  door  of 

the  court-house  in  said  city,  sell  at  public  auction  to  the  high- 
est bidder,  in  accordance  with  the  terms  and  conditions  of 
said  decree,  the  above  described  property,  lands  and  premises, 
and  apply  the  proceeds  thereof  as  is  by  said  decree  made  and 
provided.  P.  D., 

Special  Master,  District  Court  of  the  United  States,  Dis- 
trict of . 


No.  895. 

Advertisement  of  Sale  by  Special  Master. 
[Caption.] 

By  virtue  of  a  decree  of  foreclosure  and  sale  made  and  en- 
tered by  the  district  court  of  the  United  States  for  the 


division  of  the  district  of  ,  held  at  therein, 

on ,  in  the  above  entitled  cause,  I,  as  special  master  ap- 
pointed for  such  purpose  by  the  said  decree,  will  sell  at  public 
vendue,  to  the  highest  bidder  for  cash,  in  bar  and  free  of  all 
right  and  equity  of  redemption  in  said  defendants,  P.  C.  and 

A.  C,  at  the  door  of  the  court-house  of  county,  in  the 

city  of ,  on  the day  of ,  between  legal  hours,  the 

following  described  lot  or  parcel  of  ground  described  in  the 

bill  in  said  cause  and  situate  in  the  city  of  ,  county  of 

— ,  and  state  of ,  to-wit :  [Describe  property  to  be  sold.] 

J.  N.,  Special  Master. 


No.  896. 

Report  of  Special  Master  of  no  Sale  for  Want  of  Bidders. 

[Caption.] 

To  the  Honorable  the  Judge  of  the  District  Court  of  the 

United  States  for  the District  of : 

By  the  decree  entered  by  this  honorable  court  in  the  above 


JUDICIAL   SALES.  1353 

Styled  cause  on  June ,  which  decree  was  amended  by  a 

supplemental  decree  entered  therein  on ,  I  was  appointed 

Special  Master  to  sell  the  railroad,  franchises  and  other  prop- 
erty of  the  C.  &  D.  Railroad  Company  upon  the  terms  and 
in  accordance  witfi  the  provisions  of  said  decree  as  amended. 

And  the  said  railroad  company,  and  those  claiming  under 
it,  and  all  persons  having  a  right  to  redeem  under  said  de- 
cree, having  each  failed  on  or  before  the  day  of  , 

the  time  limited  in  said  decree  as  amended  to  pay  the  sums 
adjudged  by  said  decree  as  amended  to  be  due  to  the  persons 
by  said  decree  adjudged  to  have  liens  upon  the  property  and 
franchises  of  said  railroad  company  under  the  statute  of  the 

state  of  ,  entitled  "  An  Act  to  create  a  lien  on  canals, 

railroads  and  other  public  improvements  in  favor  of  persons 
furnishing  labor  and  materials  for  the  construction  and  im- 
provement thereof,"  and  having  failed  to  pay  the  sums,  with 
interest,  adjudged  due  to  complainant,  and  the  costs  of  this 
suit,   I   proceeded  to  advertise  a  sale  of  said  property  and 

franchises  for  on  the day  of ,  upon  the  terms  and 

in  accordance  with  the  provisions  of  said  decree  as  amended, 
by  causing  to  be  inserted  once  a  week  for  four  successive 
weeks  before  said  day  of  sale,  in  each  of  the  following  named 
newspapers,  to  wit,  the  Commercial,  a  newspaper  pub- 
lished in  the  city  of  ;  the  Sun,  a  newspaper  pub- 
lished in  the  city  of ,  and  the Enterprise,  a  news- 
paper    published     in     the     city     of    ,     the     following 

advertisement,  to  wit:     [Here  insert  advertisement  in  full.l 

On  Saturday,  the day  of  ,  I  attended  at  the  time 

and  place  stated  in  said  advertisement,  and  then  and  there 
proclaimed  the  terms  and  conditions  of  sale,  and  made  public 
outcry,  for  sale  to  the  highest  bidder,  of  said  railroad,  fran- 
chises and  property  of  said  railroad  company,  upon  said  terms 
and  conditions: 

And  no  person  offering  to  bid  for  said  railroad,  franchises 
and  property,  I  thereupon,  as  authorized  by  said  decree,  de- 
clared said  sale  postponed  until  Monday,  the  day  of 


1354  SUITS   IN   EQUITY. 

.  unless  this  honorable  court  should  enter  some  addi- 
tional order  in  regard  to  the  sale  of  said  railroad  franchises 
and  property. 

All  of  which  is  reported  to  this  honorable  court  for  its 
information  and  such  action  as  it  may  deem  proper  in  the 
premises.  E.  M., 

Special  Master. 

Costs  of  advertisement: 

Comrnercial   $68  80 

Sun    20  00 

Enterprise    20  00 

Total    $108  80 


No.  897. 

Supplemental  Report  of  Special  Master  to  Make  Sale,  Post- 
poning Sale. 

^o  the  Hon.  the  Judge  of  the  District  Court  of  the  United 
States  for  the District  of : 

Since  my  report  of  offering  for  sale  the  railroad,  franchises 
and  other  property  of  the  C.  &  D.  Railroad  Company  upon 
the day  of ,  and  in  accordance  with  the  postpone- 
ment of  said  sale  then  announced,  on  Monday,  the  day 

of ,  I  attended  at  the  hour  and  place  stated  in  the  adver- 
tisement set  forth  in  said  former  report,  and  then  and  there 
proclaimed  the  terms  and  conditions  of  sale,  and  made  public 
outcry  for  sale  to  the  highest  bidder  of  said  railroad,  fran- 
chises and  property  of  said  railroad  company  upon  said  terms 
and  conditions  set  forth  in  said  former  report,  and  no  person 
offering  to  bid  for  said  railroad,  franchises  and  property,  I 
thereupon,  as  authorized  by  the  decree  herein,  declared  said 
sale  postponed  until  the  further  order  of  this  honorable  court. 


JUDICIAL    SALES.  •     1355 

All  of  which  is  reported  to  this  honorable  court  for  its  in- 
formation and  such  action  as  may  be  deemed  proper  in  the 
premises.  E.  M.. 

Special  ]Master. 


No.  898. 

Report  of  Special  Commissioner  to  Make  Sale  of 
Postponement. 

To  the  Hon.  the  Judge  of  the  District  Court  of  the  United 
States  for  the District  of : 


By  the  decree  entered  by  this  honorable  court  in  the  above 

styled  cause,   on  the  day  of  ,  which  decree  was 

amended  by  a  supplemental  decree  entered  therein  on  the 

day  of ,  and  further  amended  by  a  supplemental  decree 

entered  on  the  day  of  ,  I  was  appointed  Special 

Master  to  sell  the  railroad,  franchises  and  other  property  of 
the  C.  &  D.  Railroad  Company  upon  the  terms  and  in  accord- 
ance with  the  provisions  of  said  decree  as  amended.  And 
the  said  railroad  company  and  those  claiming  under  it,  and 
all  persons  having  a  right  to  redeem  under  said  decree,  having 
each  failed  on  or  before  the day  of ,  the  time  lim- 
ited in  said  decree  as  amended,  to  pay  the  sums  adjudged  by 
said  decree  as  amended  to  be  due  to  the  persons  by  said  decree 
adjudged  to  have  liens  upon  the  property  and  franchises  of 

said  railroad  company  under  the  statute  of  the  state  of , 

entitled  "  An  Act  to  create  a  lien  on  canals,  railroads  and 
other  public  improvements  in  favor  of  persons  furnishing 
labor  and  materials  for  the  construction  and  improvement 
thereof,"  and  having  failed  to  pay  the  sums,  with  interest,  ad- 
judged due  to  complainant,  and  the  costs  of  this  suit,  I  pro- 
ceeded after  ,  to  advertise  a  sale  of  said  property  and 

franchises  for  ,  upon  the  terms  and  in  accordance  with 

the  provisions  of  said  decree  as  amended  by  causing  to  be 
inserted  once  a  week  for  four  successive  weeks  before  said 


1356  SUITS    IN    EQUITY. 

day  of  sale  in  each  of  the  following  named  newspapers,  to  wit : 

The  Commercial,  a  newspaper  published  in  the  city  of 

;  the  Sun,  a  newspaper  published  in  the  city  of 

,  and  the Enterprise,  a  newspaper  published  in  the 

city  of  ,   the  following  advertisement,   to  wit:     \_Here 

insert  advertisement  in  full.'] 

On  Saturday,  the day  of ,  I  attended  at  the  time 

and  place  stated  in  said  advertisement,  and  then  and  there 
proclaimed  the  terms  and  conditions  of  sale,  and  made  public 
outcry  for  sale  to  the  highest  bidder  of  said  railroad,  fran- 
chises and  property  of  said  railroad  company,  upon  said  terms 
and  conditions. 

And  no  person  offering  to  bid  for  said  railroad,  franchises 
and  property,  I  thereupon,  as  authorized  by  said  decree,  de- 
clared sai^i  sale  postponed  until  Saturday,  ,  unless  this 

honorable  court  should  enter  some  additional  order  in  regard 
to  the  sale  of  said  railroad,  franchises  and  property;  and  I 
posted  in  a  public  place  in  the  station  building  on  the  prop- 
erty  of   said    railroad   company   at   a  notice   of   said 

postponement,  in  words  and  figures  as  follows,  to  wit :  \^Here 
insert  notice  of  postponement  in  full.~\ 

I  further  report  that  in  pursuance  to  said  notice  of  post- 
ponement, on  Saturday,  the day  of ,  I  attended  at 

the  hour  and  place  stated  in  said  advertisement,  and  then  and 
there  proclaimed  the  terms  and  conditions  of  sale  and  made 
public  outcry  for  sale  to  the  highest  bidder  of  said  railroad, 
franchises  and  property  of  said  railroad  company  upon  said 
terms  and  conditions;  and  no  person  offering  to  bid  for  said 
railroad,  franchises  and  property,  I  thereupon,  as  authorized 
by  said  decree,  declared  said  sale  postponed  until  Saturday, 

the  day  of  ,   unless  this   honorable  court  should 

enter  some  additional  order  in  regard  to  the  sale  of  said  rail- 
road, franchises  and  property;  and  I  posted  in  a  public  place 
in  the  station  building  on  the  property  of  said  railroad  com- 
pany at  ,  a  notice  of  said  postponement  in  words  and 


JUDICIAL    SALES,  1357 

figures  as  follows,  to-wit :     [Here  insert  notice  of  postpone- 
ment in  full.] 

All  of  which  is  reported  to  this  honorable  court,  for  its 
information  and  such  action  as  it  may  deem  proper  in  the 
premises.  E.  M., 

Special  Master. 


No.  899. 

Report  of  Sale  by  Special  Master.  (1) 

[Caption.] 

To  the  Hon.  the  Judge  of  the  District  Court  of  the  United 
States  for  the District  of : 

The  undersigned,   appointed  Special  Master  in  the  above 

styled  cause  by  a  decretal  order  entered  therein  on ,  and 

amended  ,  to  make  sale  of  the  property  and  franchises 

lately  belongftig  to  the  C.  &  D.  Railroad  Company,  respect- 
fully reports: 

That  having  on  postponed  the  sale  of  said  property 

and  franchises,  under  authority  of  said  decretal  order,  as  re- 
ported to  the  court  in  my  report  filed  herein  on ,  which 

report  is  referred  to  and  made  a  part  of  this  report,  I  caused 
the  written  notice  of  postponement  referred  to  in  said  report, 
which,  on ,  I  affixed  to  the  depot  of  said  railroad  com- 
pany at ,  upon  the  property  lately  belonging  to  said  com- 
pany, to  be  published  once  a  week  for  four  successive  weeks 

before ,  the  day  to  which  said  sale  was  postponed  in  the 

Commercial,  a  newspaper  published  in ,  and  in  the 

Sun,  a  newspaper  published  in . 

I  further  report  that  on  the  day  fixed  for  said  sale,  to  wit, 
I  proceeded  to  the  city  of ,  and  then  and  there  at 


the  time  and  place  advertised  for  said  sale,  offered  for  sale 
to  the  highest  bidder  the  said  railroad  property  and  fran- 
chises lately  belonging  to  said  railroad  company,  in  accord- 
ance with  the  terms  of  said  decree,  of  which  terms  I  then  and 


1358  SUITS    IN     EQUITY. 

there  made  public  proclamation;  at  which  time  and  place  G. 
H.,  J.  K.,  L.  M.,  N.  P.  and  R.  S.,  having  deposited  with  me 

the  sum  of  $ in  cash  and  certified  checks  satisfactory  to 

me,  bid  for  said  railroad  property  and  franchises  the  sum  of 

' dollars,  and  assumed  all  of  the  liabilities  of  the  receiver 

herein  which  have  accrued  since  October ,  and  undertook 

to  return  to  the  fund  in  court  all  sums  which  may  have  been, 
or  may  be,  used  out  of  said  fund  in  repair  or  betterment  of  said 
railroad.  Said  bid  being  the  only  bid  made  or  offered  at  said 
sale,  I  thereupon  struck  off  said  railroad  property  and  fran- 
chises to  said  bidders  as  purchasers. 

I  further  report  that  in  accordance  with  the  terms  of  said 
sale,   said  purchasers  having  executed  and  delivered  to  me 

their  two  bonds;  the  first  bearing  date  ,  payable  on  or 

before  three  months  after  the  date  thereof,  with  interest  at 

6  per  cent,  per  annum  until  paid,  for  the  sum  of ($ ) 

dollars,  and  executed  by  said  purchasers,  and  the  second  bear- 
ing date ,  payable  on  or  before  six  months  after  the  date 

thereof,  with  interest  at  6  per  cent,  per  annum  until  paid,  for 

the  sum  of ($ )  dollars,  executed  by  said  purchasers 

as  principals  and  by  the  Fidelity  &  Deposit  Company  of 

as  surety. 

Said  bonds  were  executed  by  said  G.  H.  and  J.  K.,  by  A. 
F.,  their  attorney  in  fact,  and  by  said  L.  M.,  N.  P.  and  R.  S., 
by  G.  W.,  their  attorney  in  fact;  and  said  six  months'  bond 

was  executed  by  the  Fidelity  &  Deposit  Company  of  , 

by  W.  S.,  its  general  agent  and  attorney  in  fact. 

I  further  report  that  on  the  day  of ,  under  au- 
thority of  said  decree  authorizing  the  purchaser  at  said  sale, 
to  anticipate  the  payment  of  either  of  said  bonds,  said  G.  H., 
J.  K.  and  L.  M.,  paid  me  upon  said  six  months'  bond  the  sum 

of  ($ )   dollars,  which  sum  I  have  endorsed  as  a 

credit  upon  said  six  months'  bond  as  of  said  date. 

I  return  into  court  herewith,  as  part  hereof,  said  bonds,  to- 
gether with  said  powers-of-attorney,  excepting  the  power-of- 
attorney  from  the  Fidelity  &  Deposit  Company  to  W.   S., 


JUDICIAL   SALES.  1359 

which  is  on  file  in  the  clerk's  office  of  this  court ;  and  offer  to 

pay  into  court  herewith  the  sum  of  ($ )    dollars, 

being  the  said  cash  payment  of  $ on  said  payment  of 

$ made  as  aforesaid  upon  said  six  months'  bond. 

All  of  which  is  respectfully  submitted.  E.  M., 

Special  Master. 

(1)  Foster's  Fed.  Prac,  5th  ed.,  Sec.  394,  p.  1245;  Clark  v.  Iowa 
Fruit  Co.,  185  Fed.  604. 


No.  900. 

Order  Nisi  Confirming  Sale.(l) 

[Caption.] 

The  report  of  E.  M.,  heretofore  appointed  special  master 
to  make  the  sale  heretofore  ordered  and  decreed,  having  been 
duly  filed,  and  it  appearing  therefrom  that  said  special  master 
duly  struck  off  and  sold  as  one  parcel  and  as  an  entirety  the 
whole  of  the  properties  of  every  sort  and  description  of  the 
C.  &  D.  Railway  Company,  wherever  situated  and  of  what- 
ever sort  and  nature,  free  and  clear  of  all  liens  of  each  and 
every  one  of  the  parties  to  this  cause,  but  subject  to  the  lien  of 
the  mortgage  of  the  E.  &  F.  Railroad  Company  so  far  as  said 
liend  extends,  to  R.  C,  for  the  sum  of dollars ; 

It  is,  on  motion  of  said  complainant,  the  A.  B.  Trust  Com- 
pany, ordered  that  said  report  and  sale  be  confirmed,  unless 
cause  to  the  contrary  thereof  be  shown  in  eight  days  after 
notice,  to  the  parties  to  the  several  bills  of  complaints  in  this 
cause,  of  their  solicitors,  of  the  filing  of  said  report. 

(1)  As  to  the  practice  of  entering  an  order  nisi  confirming  a  sale. 
See  Pewabic  Mining  Co.  v.  Mason,  145  U.  S.  363-4;  Re  Nevada-Utah 
Mines  St  Smelters  Corporation,  198  Fed.  497. 


No.  901. 

Decree  Denying  Motion  to  Set  Aside  Sale  and  Order  Absolute 
Confirming  Sale. 

[Caption.] 

Now  came  on  for  hearing  the  motion  of  the  defendant,  the 
C.  &  D.  Railway  Company,  to  set  aside  the  sale  of  the  railroad 


1360 


SUITS    IN    EQUITY. 


and  other  property  of  said  defendant,  for  the  reasons  in  said 
motion  set  forth,  which  motion  was  filed  at  the  clerk's  office 

of  this  court  on  the day  of ;  and  the  court  having 

heard  the  parties  by  their  counsel  and  being  now  fully  advised 
in  the  premises,  finds  that  said  motion  should  not  be  granted, 
and  it  is  ordered,  adjudged  and  decreed  that  the  same  be  over- 
ruled and  denied. 

And  thereupon  there  was  submitted  to  the  court  the  re- 
turn of  H.  G.,  the  Master  heretofore  appointed  for  that 
purpose,  of  his  proceedings  under  the  order  of  sale  issued  to 
him  in  pursuance  of  the  decree  of  foreclosure  and  sale  hereto- 
fore entered  herein,  and  it  app>earing  from  said  return  and 
the  proceedings  of  said  Master  that  he  has  in  all  things  com- 
plied with  the  provisions  of  said  decree  and  order,  and  has 
advertised  and  sold  the  property  in  said  decree  and  order  de- 
scribed in  all  respects  in  accordance  therewith,  and  that  R.  C. 
Martin  was  the  highest  and  best  bidder  for  all  of  said  proper- 
ty, and  bid  therefor  and  for  each  part  thereof  a  sum  equal  to 
the  sum  fixed  in  said  decree  for  the  same  and  for  the  whole 
property  a  sum  greater  than  the  upset  price  fixed  therefor,  and 
has  deposited  with  the  Master  the  sum  of  $ ,  the  sum  re- 
quired by  said  decree,  and  said  Master  has  deposited  the  same 
in  the  registry  of  the  court,  and  the  purchaser  has  otherwise 
complied  with  the  terms  of  said  purchase. 

And  it  appearing  that  the  objections  of  the  defendant  rail- 
road company  to  the  confirmation  of  said  sale  have,  as  here- 
inbefore recited,  been  filed  in  its  motion  to  set  aside  said  sale 
and  overruled  as  hereinbefore  provided,  and  the  court  now 
coming  to  the  hearing  of  complainant's  motion  to  confirm 
said  sale  and  approve  of  the  report  and  proceedings  of  said 
Master,  and  being  now  fully  advised  in  the  premises,  do  find 
that  the  same  are  in  all  respects  regular  and  legal,  and  that 
said  proceedings  and  sale  ought  to  be  confirmed. 

It  is  therefore  ordered,  adjudged  and  decreed  that  said  pro- 
ceedings and  sale  be  and  the  same  are  hereby  in  all  respects 
confirmed,  and  that  upon  full  payment  being  made  by  said 


JUDICIAL    SALES.  1361 

purchaser,  as  provided  in  said  decree,  that  deeds  of  convey- 
ance be  made  by  said  H.  G.,  Special  Master  as  afo'e- 
said,  to  said  purchaser,  R.  C,  or  his  assigns,  of  all  the 
'property,  rights,  privileges  and  immunities  in  said  decree 
described,  in  accordance  with  the  terms  and  subject  to  the  con- 
'ditions  of  said  decree. 


No.  902. 

Petition  to  Open  Sale  before  Confirmation. 

[Caption.^ 

Your  petitioners,  D.  S.,  C.  M.,  E.  T.  and  D.  A.,  for  them- 
selves and  all  persons  similarly  interested  and  willing  to  join 
herein,  would  respectfully  represent  unto  your  honor  that  the 

sale  made  herein  on ,  should  not  be  confirmed,  but  on  the 

contrary,  should  be  set  aside  and  a  new  sale  ordered. 

Your  petitioners  represent  that  the  amount  of  the  mechan- 
ic's lien  claims  in  this  case,  without  counting  interest  since 
the  last  judgment   in  favor  of  your  petitioners,  amount  to 

about  $ .     The  amount  which  the  property  brought  at 

the  sale  on  October ,  was  $ ,  but  the  purchaser  will 

have  to  pay  besides  that  about  $ — — ,  making  $ . 

The  amount  of  the  receiver's  certificates  and  costs  to  come 

out  of  this  fund  is  $ ,  leaving  only  $ distributable 

among  the  $ of  mechanic's  lien  claims.     This  will  yield 

to  these  claims  only  lo^^  per  cent. 

This  claim  of  your  petitioners  represents  labor  and  material 
furnished  by  them  in  building  this  road.  It  is  for  so  large  an 
amount  as  that  ever  since  it  failed  of  payment  your  petition- 
ers have  been  seriously  crippled  in  their  business  and  the  loss 
to  them  is  of  most  serious  consequence. 

Your  petitioners  say  that  they  have  exercised  all  diligence 
that  they  knew  how  or  were  capable  of  in  endeavoring  to 
have  the  property  bring  a  fair  price.  When  the  sale  was  ad- 
vertised through  the  fall  of  your  petitioners,  at  great 

expense  to  themselves,   and   after  great  labor,   procured   an 


1362  SUITS    IN    EQUITY. 

agreement,  as  they  supposed  among  the  lienholders,  by  which 
the  property  could  be  bought  in.  The  deposit  was  furnished 
through  your  petitioners,  and  the  bonds  for  the  deferred  pay- 
ment arranged  for  at  their  expense.     They  accordingly  bought 

in  the  property  at  $ ,  which  they  believed  at  the  time  was 

much  less  than  its  value. 

It  appeared  that  after  they  had  made  their  deposit  and  ex- 
ecuted their  bonds,  a  large  mechanic  lienholder,  who  they  in 
good  faith  believed  had  come  into  the  plan,  refused  to  be 
bound  by  it.  Without  the  adherence  of  this  lienholder  it 
was  impossible  for  these  petitioners  to  carry  out  the  plan. 
They  therefore,  after  a  great  deal  of  exertion,  arranged  a 
transfer  of  their  bid  to  X.  Y.,  at  $ .  This  your  petition- 
ers believed  to  be  a  very  great  sacrifice,  but  to  it  their  lack  of 
capital  compelled  them. 

Upon  the  failure  of  the  said  X.  Y.  to  comply  with  the  terms 
of  payment,  the  property  was  again  advertised  for  sale; 
whereupon  these  petitioners  again  endeavored  with  all  dili- 
gence, to  procure  some  person  to  bid  for  the  property  or  some 
person  to  join  with  them  in  bidding  for  the  property.  When 
the  sale  was  about  to  come  off,  on ,  one  of  these  petition- 
ers came  to  .     They  had  arranged  with  J.  W.  to  raise 

the  $ with  which  to  make  the  deposit  in  order  to  make 

a  bid.  In  an  affidavit  accompanying  the  petition  they  have 
fully  detailed  the  circumstances  under  which  they  failed  to 
obtain  the  benefit  of  this  deposit.     If  they  had  obtained  it 

they  would  have  bid  at  least  $ and  could  and  would  have 

complied  with  all  the  terms  of  sale.  They  would  only  have 
stopped  there  in  the  fear  that  with  their  diminished  resources 
they  might  not  be  able  to  promptly  comply  with  the  terms  of 
sale  at  a  higher  price. 

On  the  evening  of  ,  your  petitioners  were  informed 

by  the  counsel  for  the  purchaser,  X.  Y.,  that  he  expected  upon 
the  next  day,  to  bid  the  full  amount  due  by  the  said  X.  Y., 
and  that  in  order  to  qualify  himself  to  make  this  bid  he  ex- 
pected to  receive  $ from  Philadelphia.     He  further  in- 


JUDTCTAT,    SALES.  1363 

formed  your  petitioners  that  the  money  for  the  deposit,  $ , 


was  to  be  deposited  in  a  certain  national  bank  in  Philadelphia 
to  the  credit  of  the  American  National  Bank  of  the  city  of 
Louisville;  that  the  Philadelphia  bank  was  to  telegraph  to 
the  American  National  Bank  the  fact  of  this  deposit,  and  the 
American  National  Bank  was  thereupon  to  certify  a  check 

for  $ to  the  said  counsel  of  the  said  X.  Y. ;  that  by  some 

mischance  the  money  had  not  been  offered  for  deposit  in  the 
Philadelphia  bank  until  about  five  minutes  after  banking 
hours ;  that  at  that  time  a  cashier's  check  upon  a  bank  in  Cam- 
den (which  is  just  across  the  river  from  Philadelphia)  had 
been  presented  for  deposit,  but  the  cashier  of  the  Philadelphia 
bank  preferred  to  wait  until  the  next  morning  before  receiv- 
ing the  deposit  as  cash  and  notifying  the  American  National 

Bauk  eft  .     To  avoid  all  contingencies  the  said  counsel 

of  X.  Y.  thereupon  procured  the  president  of  the  American 
National  Bank  in  Louisville  to  give  the  counsel  of  these  peti- 
tioners a  cashier's  check  for  $ ,  and  instructed  the  counsel 

for  these  petitioners  to  deliver  the  said  check  to  the  counsel 

for  the  said  X.  Y,  at (where  the  sale  was  to  be  made) 

upon  telegraphic  advice,  oh  the  morning  of  the of ; 

that  the  deposit  had  been  duly  made  in  Philadelphia,  to  the 
credit  of  the  American  National  Bank. 

The  petitioners  state  that  these  statements  made  by  the 
counsel  for  the  said  X.  Y.  were  all  made  in  the  best  faith  and 
were  fully  believed  by  him  and*by  these  petitioners  to  be  ex- 
actly true.  Your  petitioners  therefore  felt  satisfied  that  the 
said  counsel  for  X,  Y.  would  bid  at  the  sale  an  amount  suffi- 
cient to  cover  what  was  due  from  X.  Y.,  and  would  have  the 

$ to  put  up  with  the  Master  making  the  sale,  in  order 

to  justify  the  bid. 

The  petitioners,   with  their  counsel,  and  with  the  counsel 

for  the  purchaser,  went  to next  day, ,  arriving  there 

about  II  o'clock.  The  sale  was  advertised  to  come  off  be- 
tween lo  and  2.  Inquiry  was  immediately  made  as  to  wheth- 
■er  any  telegram  had  come  from  the  American  National  Bank 


1364  SUITS    IN    EQUITY. 

to  counsel  for  your  petitioners,  directing  him  to  turn  over  the 
check  which  he  had  in  his  possession  to  counsel  for  the  said 
X.  Y.  None  had  come.  Thereupon,  at  the  request  of  all 
the  parties,  E.  M.,  the  Master  appointed  to  make  the  sale, 
agreed  that  he  would  begin  at  half-past  one. 

In  the  meantime  the  counsel  for  X.  Y.  heard,  through  tele- 
gram from  Philadelphia,  that  the  transmission  of  the  money 
had  been  delayed,  and  he  was  requested  to  delay  the  sale  so 
that  it  could  come.  At  half-past  one  o'clock,  the  counsel  for 
your  petitioners  was  called  up  by  telephone,  from  the  Ameri- 
can National  Bank  and  the  president  of  said  bank  stated  to 
said  counsel  that  he  had  received  advices  from  Philadelphia 
that  the  deposit  had  not  been  made. 

Believing  that  there  had  been  complete  failure  upon  the 
part  of  X.  Y.  to  make  the  deposit,  no  further  request  was  made 
of  the  Master  to  postpone  the  sale,  and  he  thereupon  put  up 
the  property,  when  the  present  purchasers  were  the  only  ones 
who  qualified,  and  the  property  was  knocked  off  to  them  at 
the  upset  price. 

At  about  half-past  three,  or  less  than  an  hour  and  a  half 
after  the  property  had  been  thus  knocked  off,  the  counsel  for 
your  petitioners  was  again  called  up  by  telephone  from  Louis- 
ville and  the  president  of  the  American  National  Bank  in- 
formed counsel  for  your  petitioners  that  he  had  received  tele- 
graphic advices  from  Philadelphia  that  the  deposit  had  been 
made,  and  directed  the  counsel  for  your  petitioners  to  deliver 
to  counsel  for  X.  Y.  the  said  check  for  $ ,  which  was  im- 
mediately done. 

And  so  it  is  that  although  your  petitioners  submit  to  the 
court  that  they  had  every  reason  to  believe  that  there  would 
be  three  bidders  at  said  sale,  viz.,  those  persons  who  were 
represented  by  B.  H.,  Esq.,  and  who  had  announced  to  the 
court  that  they  would  bid,  and  the  said  X.  Y.  and  themselves. 
At  last,  when  the  time  came,  only  one  of  them  qualified,  and 
hence  the  present  purchasers  were  able  to  get  the  property  at 
the  upset  price. 


JUDICIAL    SALES.  1365 

Your  petitioners  therefore  aver  that  it  was  only  by  acci- 
dent that  the  present  purchasers  obtained  the  property  at  the 
upset  price;  and  this  is  an  accident  which  in  equity  and  good 
conscience  your  petitioners  beheve  they  are  entitled  to  be  re- 
lieved from. 

Your  petitioners  are  informed  and  so  state  that  a  perfectly 

solvent  person  has  been  found  who  is  ready  to  give  $ 

for  the  said  property,  and  who  will,  if  the  court  shall  open 
the  bidding,  make  and  comply  with  such  a  bid.  This  is  an 
advance  upon  the  former  bid  of  $50,000,  all  of  which  will  be 
coming  to  the  mechanic's  lienholders,  and  will  enable  them  to 
realize  instead  of  about  iq>4  cents  on  the  dollar  for  their 
claims,  more  than  double  this  amount  upon  each  dollar  oi 
their  claims;  and  to  these  petitioners  alone  will  amount  to 
nearly  $ advance. 

Your  petitioners  further  say  that  they  have,  so  far  as  they 
are  aware,  lacked  nothing  in  diligence  to  endeavor  to  avoid 
for  themselves  and  the  other  mechanic's  lienholders  the  great 
loss. 

Your  petitioners  say  that  now  an  opportunity  is  afforded 
them  of  saving  a  large  sum ;  they  say  that  in  their  judgment 

this  property  is  worth  largely  more  than  even  the  $ ,  and 

at  least  the  sum  of  $ ,  and  the  price  bid  by  the  present 

purchasers  is  grossly  inadequate. 

Wherefore  your  petitioners  pray  that  this,  their  petition, 
may  be  taken  as  an  exception  to  the  report  of  sale  and  as  an 
application  to  set  the  sale  aside,  upon  such  terms  and  condi- 
tions of  indemnity  to  the  purchasers  as  the  court  shall  be  ad- 
vised, and  of  security  as  to  the  new  bid  as  the  court  may  order ; 
and  your  petitioners  are  entirely  willing  that  the  fund  in  court 
shall  be  used  to  pay  the  purchasers  such  just  allowances  as 
the  court  may  deem  right,  and  that  the  new  sale  may  be  made 
at  such  short  date  as  the  court  may  direct;  and  your  petition- 
ers will  ever  pray.  D.  S.,  Etc. 

[Veriiication.'] 

(i)  This  petition  was  sustained  by  the  Circuit  Court  and  on  appeal 
in  Magann  v.  Segal,  92  Fed.  252.  34  C.  C.  A.  323. 


1366  SUITS    IN    EQUITY, 

No.  903. 

Petition  to  Join  in  Foregoing  Petition  to  Set  Aside  a  Sale. 

[Caption.^ 

The  lienholders  whose  claims  have  been  adjudged  in  the 
decree  in  their  favor,  viz.:  [Naming  thern],  respectfully  rep- 
resent to  the  court  that  the  application  made  by  D.  S.  to  this 
honorable  court  to  refuse  to  confirm  the  sale  made  in  this  suit 

on  the day  of ,  and  to  order  a  new  sale,  is  clearly 

beneficial  to  all  the  parties  to  said  suit  interested  in  the  pro- 
ceeds of  sale,  viz. :  the  laborers  and  contractors  in  whose  favor 
liens  have  been  adjudged. 

Petitioners  further  respectfully  represent  that  they  are  will- 
ing that  a  resale  be  ordered  upon  the  terms  specified  in  the 
said  petition  of  D.  S.,  viz. :  that  the  successful  bidders  at  the 
late  sale  aforesaid  be  reimbursed  all  their  expenses  out  of  the 
proceeds  of  sale  accruing  to  said  lienholders;  that  the  said 
sale  be  made  upon  any  short  notice  or  any  notice  which  the 
court  may  direct  and  upon  such  other  terms  as  the  court  may 
consider  proper ;  and  they  unite  in  the  prayer  of  said  petition 
of  said  D.  S.  and  pray  as  is  prayed  in  said  petition. 

R.  &  R., 
Attorneys  for  Petitioners. 


No.  904. 

Petitions  Consenting  to  Set  Aside  a  Sale. 

{Caption.'] 

Your  petitioners.  S.  Bridge  Company,  J.  W.  and  the  Car- 
negie Steel  Company,  limited,  would  respectfully  join  in  the 

petition  to  set  aside  the  sale  which  was  made  on  October , 

and  state  that  they  are  willing  that  the  purchaser  may  have 
all  just  allowances,  and  that  the  court  may  resell  the  property 
at  such  short  date  as  may  seem  to  it  fit. 

Your  petitioners  will  ever  pray. 

X.  &  X., 
Attorneys  for  Petitioners. 


JUDICIAL    SALES. 


1367 


No.  905. 

Order  Setting  Aside  Sale  (i). 

\_C  option.^ 

This  cause  having  come  on  to  be  heard  upon  the  applica- 
tion of  the  purchasers  at  the  sale  made  herein ,  and  re- 
ported to  the  court  ,  to  confirm  the  said  sale,  and  upon 

the  petitions  and  exceptions  of  [naming  them],  and  upon  the 
proposition  of  the  said  X.  Y.,  and  the  proposition  of  J.  S., 
trustee,  and  upon  the  affidavit  of  the  said  purchasers  and  two 
affidavits  of  D.  A.,  one  of  A.  P.,  and  one  of  S.  T.,  and  the 
court  being  advised,  it  is  ordered,  adjudged  and  decreed  as 
follows : 

First.  That  the  application  of  the  said  purchasers  to  con- 
firm the  sale  be  and  it  is  hereby  overruled,  that  the  petitions 
seeking  to  set  aside  the  sale  are  sustained,  and  th^  said  sale 
is  hereby  set  aside  and  held  for  naught. 

Second.  That  the  Special  Master,  Hon.  E.  M.,  shall  forth- 
with proceed  to  sell  the  property  described  in  the  decree  en- 
tered herein  on  the day  of ,  as  amended ,  upon 

exactly  the  terms  set  out  in  the  said  decree  as  amended,  and 
after  the  same  notice  and  at  the  same  place ;  but  the  court 
having  accepted  the  bid  of  J.  S.,  trustee,  for  the  purpose  of 
ordering  a  resale  the  Master  shall  start  the  biddings  at  said 
sale  with  a  bid  of  $ in  the  name  of  J.  S.,  trustee. 

Third.  The  said  E.  M.  shall  forthwitri  pay  back  to  the  pur- 
chasers the  money  paid  to  him  by  them,  being  the  sum  of 

dollars,  said  payment  may  be  made  to  B.  H.,  Esq.,  the  attor- 
ney of  record  of  said  purchasers. 

Fourth.  J.  S.,  trustee,  consenting,  it  is  ordered  that  he  pay 
over  to  S.  M.,  receiver  herein,  the  one  hundred  thousand  dol- 
lars presented  by  him,  the  said  J-  S.,  trustee,  as  security,  for 
his  compliance  with  the  offer  made  by  him  herein,  and  the 
said  S.  M.,  receiver,  now  in  open  court,  has  had  delivered  to 

him  the  said  dollars.     The  said  S.  M.,  receiver,  shall 

pay  into  court  the  sum  of dollars,  to  be  applied  as  here- 


1368  ■  SUITS    IN    EQUITY. 

inafter  directed.  He  shall  use  the  balance  of  said  fund,  to 
wit,  dollars  in  paying  that  amount  of  receiver's  certi- 
ficates heretofore  issued  herein,  paying  the  same  to  the  order 
of  their  serial  numbers,  beginning  with  the  lowest.  He  shall 
execute  to  the  said  J.  S.,  trustee,  a  receiver's  certificate  dated 

this  day  in  the  sum  of  dollars,  payable  whenever  the 

court  shall  order,  bearing  4  per  cent,  per  annum  interest  from 
date  until  paid.  He  shall  retain  possession  thereof  subject  to 
the  order  of  the  court.  If  the  said  J.  S.,  trustee,  becomes  the 
successful  bidder,  the  said  receiver's  certificate  shall  be  ap- 
plied upon  his  bid ;  if  he  be  not  the  successful  bidder,  he  shall 
stand  as  the  owner  thereof  subject  to  a  priority  in  favor  of  the 
other  outstanding  receiver's  certificates. 

Fifth.  The  twenty-five  thousand  dollars,  above  mentioned  to 
be  paid  into  court  by  the  said  S.  M.,  receiver,  is  so  paid  into 
the  end  that  it  may  be  applied  to  such  allowances  as  the  court 
may  make  to  said  purchasers.  They  shall  be  forthwith  en- 
titled to  such  an  amount  thereof  as  represents  the  interest 
upon  the  money  paid  by  them  to  the  Hon.  E.  M.,  Special 
Master,  from  the  date  it  was  so  paid  until  this  date,  and  the 

further  sum  of dollars  disbursed  by  them  in  securing  the 

Fidelity  &  Deposit  Company  of to  become  surety  upon 

their  bond. 

Leave  is  given  the  said  purchasers  to  present  their  petition 
herein  setting  forth  what  other  items  of  allowance  they  are 
justly  entitled  to. 

Sixth.  All  questions  as  to  how  far  the  allowances  made  to 
the  purchasers  herein  shall  be  paid  by  J.  S.,  trustee,  and  how 
far  they  shall  be  charged  upon  the  fund  realized  frbm  the  sale, 
and  how  far  they  shall  be  charged  against  X.  Y.,  the  former 
purchaser  herein,  are  reserved  for  further  consideration. 

Seventh.  X.  Y.  and  the  Guarantors'  Finance  Company  of 
Philadelphia,  by  D.  W.,  their  attorney,  consent  to  the  entry 
of  this  order,  and  this  cause  is  retained  for  the  purpose  of 
making  such  further  orders  as  may  be  necessary  to  exact  from 
the  said   X.   Y.   and  the  Guarantors'   Finance   Company  of 


JUDICIAL    SALES.  1369 

Philadelphia  any  deficiency  that  may  be  due  upon  their  bonds 
after  the  sale  is  made  herein. 

Eighth.  The  receiver  shall  report  to  the  court  his  action 
under  this  order,  within  ten  days  from  this  date,  and  accom- 
pany the  same  with  the  receiver's  certificates  paid  by  him, 
properly  canceled,  and  he  shall  cause  the  new  certificate  is- 
sued by  him  herein  to  be  registered  by  the  clerk  of  this  court, 
the  form  thereof  shall  be  the  similar  to  the  ones  heretofore 
issued,  except  that  it  shall  show  upon  its  face  that  it  is  in- 
ferior to  the  other  outstanding  certificates  issued  prior  to  this 
date. 

Ninth.  The  purchasers  of  the  property  at  sale  of ,  ob- 
ject to  the  entering  of  this  decree  and  all  parts  thereof  and 
except  to  the  several  rulings  of  the  court. 

(i)  This  order  was  entered  in  Magann  vs.  Segal,  92  Fed.  Rep.  252,  34 
C.  C.  A.  323,  where  the  circumstances  under  which  a  sale  may  be  set 
aside  are  fully  considered  and  the  cases  reviewed.  See  also  Pewabic 
Mining  Co.  v.  Mason,  145  U.  S.  356;  Foster's  Fed.  Prac,  Sth  ed..  Sec. 
394,  pp.  1249  to  1252;  Cowden  v.  Wild  Goose  Mining  &  Trading  Co., 
199  Fed.  5()1;  Louisville  Trust  Co.  v.  Louisville,  etc..  Ry.  Co.,  174  U.  S. 
6/4.  43  L.  Ed.  1130. 


No.  9oe. 

Decree  Confirming  Sale  of  R.  R.  Property  (i). 

[Caption.^ 

Now,  on  the  17th  day  of  April,  1900,  come  again  the  par- 
ties by  their  respective  solicitors,  and  come  also  the  purchasers, 
Morton  S.  Paton  and  Richard  B.  Hartshorne,  by  their  coun- 
sel, and  the  motion  of  the  complainant.  Continental  Trust 
Company  of  the  city  of  New  York,  that  the  report  of  Frank 
H.  Shaffer  and  Merrill  Moores,  the  Special  Masters,  filed 
herein  on  the  2d  day  of  April,  1900,  should  be  approved  and 
confirmed,  and  that  the  sale  of  the  mortgaged  railroad,  equip- 
ment, franchises  and  property  of  the  respondent,  Toledo,  St. 
Louis  &  Kansas  City  Railroad  Company,  should  be  confirmed 
and  made  absolute,  came  on  to  be  heard. 


1370  SUITS    IX    EQUITY. 

And  it  appearing  by  the  report  of  said  Special  Masters  that 
said  Special  Masters  have  fully  complied  with  the  directions 
of  the  decree  dated  the  ist  day  of  April,  1898,  entered  in  this 
cause,  and  of  the  decree  entered  in  this  cause,  dated  Novem- 
ber II,  1899,  modifying  said  decree  of  April  i,  1898,  and  of 
the  decretal  order  entered  in  this  cause  on  January  19,  1900, 
and  of  the  decree  entered  in  this  cause  on  said  January  19, 
1900,  re-entering  and  confirming  said  decree  dated  November 
II,  1899,  as  to  the  sale  of  said  railroad,  equipment,  franchises 
and  property;  that  said  railroad,  equipment,  franchises  and 
property  have  been  duly  advertised,  offered  for  sale  and  sold 
to  said  purchasers ;  that  said  purchasers  have  made  the  deposit 
and  payment  required  by  said  decrees  and  by  the  terms  of 
sale,  and  that  said  sale  ought  to  be  confirmed. 

It  is  therefore  ordered,  adjudged  and  decreed,  that  the  said 
report  of  said  Special  Masters  be,  and  the  same  hereby  is,  in 
all  things  approved  and  confirmed,  and  that  said  sale  to  said 
Morton  S.  Paton  and  Richard  B.  Hartshorne,  as  joint  tenants 
and  not  as  tenants  in  common,  as  an  entirety,  without  valua- 
tion, appraisement,  redemption  or  extension,  of  all  and  sin- 
gular the  railroad,  equipment,  franchises  and  property  of  the 
respondent,  Toledo,  St.  Louis  &  Kansas  City  Railroad  Com- 
pany, described  in  and  by  said  decree  entered  in  this  cause, 
and  dated  the  ist  day  of  April,  1898,  and,  by  said  decree,  ad- 
judged to  be  subject  to  the  lien  of  the  first  mortgage  of  said 
respondent  railroad  company,  at  and  for  the  sum  of  twelve 
million  two  hundred  thousand  dollars  by  them  bid,  be,  and  the 
same  hereby  is,  in  all  things  ratified,  approved,  confirmed  and 
made  absolute. 

And  the  said  purchasers  having  deposited  with  the  com- 
plainant. Continental  Trust  Company  of  the  city  of  New 
York,  for  the  purpose  of  paying,  satisfying  and  making  good 
the  bid  of  such  purchasers  for  said  mortgaged  railroad,  equip- 
ment, franchises  and  property,  first  mortgage  bonds  of  said 
respondent,  Toledo,  St.  Louis  &  Kansas  City  Railroad  Com- 
pany, issued  under  said  first  mortgage  of  said  respondent  rail- 


JUDICIAL    SALES,  1371 

road  company,  dated  June  19,  1886,  to  the  amount  at  par  of 
$8,814,000,  bearing  the  coupon  maturing  June  i,  1893,  and 
all  subsequent  coupons  and  producing  the  certificate  or  cer- 
tificates of  said  trust  company  that  it  so  holds  the  same  sub- 
ject to  the  order  of  said  Special  Master,  it  is 

Ordered,  adjudged  and  decreed,  that  such  provision  for  the 
payment  of  the  residue  of  said  bid  of  said  purchasers,  is  sat- 
isfactory to  this  court,  and  is  hereby  approved  by  this  court. 

It  is  further  ordered,  adjudged  and  decreed,  that  upon  the 
delivery  by  said  purchasers  to  said  Special  Masters  of  said 
certificate  or  certificates  of  deposit  of  said  trust  company,  the 
Special  Masters  sign,  seal,  execute,  acknowledge  and  deliver 
a  deed  or  deeds  of  conveyance  to  said  purchasers,  as  joint 
tenants  and  not  as  tenants  in  common,  or  to  the  persons  or 
corporations  to  whom  they  may  assign  their  rights,  of  all  and 
singular  the  railroad,  equipment,  franchises  and  property  so 
sold  as  aforesaid;  that  the  respondent,  Toledo,  St.  Louis  & 
Kansas  City  Railroad  Company,  the  complainant,  Continental 
Trust  Company  of  the  city  of  New  York,  as  surviving  trus- 
tee under  said  first  mortgage  of  said  Toledo,  Sti  Louis  & 
Kansas  City  Railroad  Company,  and  the  receiver  in  this  cause 
respectively,  and  all  other  parties  to  this  cause,  join  in  said 
deed  or  deeds  of  said  Special  Master,  or  execute  and  deliver 
separate  conveyances  of  their  property  embraced  therein  on 
demand  of  said  purchasers,  their  successors  or  their  assigns, 
and  that  in  default  of  such  deed  or  deeds  by  any  of  the  par- 
ties hereto,  this  decree  shall  have  the  force  and  effect  of  such 
deed  or  deeds,  conveying,  all  its,  their  or  his  interest  in  said 
railroad,  equipment,  franchises  and  property  so  sold  as  afore- 
said; that  said  purchasers  shall  have  the  right  to  assign  their 
interest  as  an  entirety  or  in  parcels  as  said  purchasers  may 
determine;  that  upon  filing  such  assignments  with  said  Spe- 
cial Masters,  said  Special  Masters  and  said  parties  shall  make 
deed  or  deeds  of  conveyance  accordingly,  and  that,  in  the 
event  of  any  assignment  by  said  purchasers  of  their  said  bid 
or   interest,    or   any   conveyance   by   them    of   said   railroad. 


1372 


SUITS    IN    EQUITY. 


equipment,  franchises  and  property,  may  be  transferred  to  and 
by  said  purchasers  on  account  of  the  purchase  of  said  railroad, 
equipment,  franchises  and  property,  may  be  transferred  in  and 
assumed  by  such  transferee  or  transferees,  grantee  or  grantees, 
and  thereupon  said  purchasers  shall  individually  be  discharged 
from  all  such  obligations  and  Hability. 

It  is  further  ordered  and  decreed  that  upon  the  delivery 
to  said  purchasers  or  to  their  successors  or  their  assigns  of 
said  deed  or  deeds  of  conveyance  to  be  made  by  said  Special 
Masters,  the  grantee  or  grantees  therein  shall  fully  p>ossess 
and  be  invested  with  said  railroad,  equipment,  franchises  and 
property  so  sold  and  so  conveyed  as  the  absolute  owners 
thereof;  that  on  the  exhibition  to  him  of  said  deed  or  deeds, 
the  receiver  of  this  court  who,  until  such  exhibition  thereof  to 
him  shall  continue  as  heretofore,  the  operation  of  the  mort- 
gaged premises,  is  authorized  and  directed,  and  is  required, 
to  let  said  grantee  or  grantees  into  possession  of  the  premises 
conveyed ;  that  the  recei\»er  or  any  party  to  this  cause  having 
possession  of  the  same,  deliver  to  said  grantee  or  grantees  all 
property  embraced  in  said  Special  Masters'  deed  or  deeds, 
together  with  and  including  any  property  and  income  in  the 
hands  of  the  receiver  at  any  time  acquired  or  received  by 
him  in  the  management  of  the  mortgaged  premises  down  to 
the  time  of  such  delivery  of  possession,  subject,  nevertheless, 
as  hereinafter  set  forth  and  that  said  purchasers,  their  suc- 
cessors or  their  assigns  on  receiving  said  conveyance  or  con- 
vayances,  shall  be  and  are  hereby,  subrogated  to  all  and  singu- 
lar the  rights  of  all  parties  to  this  action  with  respect  to  the 
railroad,  equipment,  franchises  and  property  sold  as  afore- 
said, with  the  right  to  prosecute  and  defend  all  issued  in  this 
suit  and  all  suits,  actions  and  proceedings  involving  the  same, 
whether  in  the  name  of  any  of  the  parties  hereto,  or  of  said 
receiver,  or  otherwise,  including  the  right  to  prosecute  pro- 
ceedings in  error  or  on  appeal. 

It  is  further  ordered  and  decreed  that  said  first  mortgage 
bonds  and  coupons  deposited  with  the  complainant  Continen- 


JUDICIAL    SALES.     •  1373 

tal  Trust  Company  of  the  city  of  New  York,  and  forming 
the  subject  of  its  certificates  of  deposit  which  may  be  deliv- 
ered to  said  Special  Masters,  remain  on  deposit  with  said 
complainant  trust  company  to  abide  the  further  order  of  the 
court  herein. 

It  is  further  ordered  and  decreed,  that,  upon  making  in 
accordance  with  said  decree  of  April  i,  1898,  payment  of  the 
amounts  by  said  decree  directed  to  be  paid  in  priority  to  the 
first  mortgage  bonds  and  the  interest  thereon,  any  residue  of 
the  fund  realized  from  said  sale,  shall  be  applied,  in  accord- 
ance with  said  decree  and  as  therein  directed,  toward  the 
payment  of  the  amount  by  said  decree  adjudged  to  be  due 
at  the  date  thereof,  in  respect  of  said  first  mortgage  bonds,  to 
wit,  the  sum  of  $12,028,500,  with  interest  on  said  amount 
from  the  date  of  said  decree  to  the  date  of  payment ;  that  the 
distribution  of  the  proceeds  of  sale,  and  all  allowances  and 
compensation  are  reserved  for  future  order,  and  that  the  de- 
livery of  said  deed  or  deeds  of  conveyance  and  of  the  pos- 
session of  said  railroad,  equipment,  franchises  and  property 
sold  as  aforesaid,  shall  be  subject  to  the  right  of  the  court  to 
require  such  further  payment  or  payments  to  be  made  in  cash 
on  account  of  said  piirchase  price  bid  in  order  to  meet  claims 
which,  under  said  decree,  are  or  may  become  payable  out 
of  the  proceeds  of  sale  in  priority  to  the  said  amount  due  on 
said  first  mortgage  bonds  as  the  court  may  from  time  to  time 
direct,  and  the  court  reserves  the  right  in  case  such  purchas- 
ers, their  successors  or  their  assigns,  shall  fail  or  neglect  to 
mai<e  any  payment  in  cash  on  account  of  any  unpaid  balance 
of  the  purchase  price  bid  within  thirty  days  after  the  entry 
of  an  order  requiring  such  payment  and  service  of  a  copy  of 
said  order  upon  said  purchasers,  their  successors  or  their  as- 
signs, to  retake  and  resell  the  mortgaged  railroad,  equipment, 
franchises  and  property,  and  jurisdiction  of  this  cause  is 
retained  for  that  purpose. 

(l)   This  decree  was  entered  in  the  case  of  Continental  Trust  Co.  vs. 


1374 


SUITS   IN    EQUITY. 


Toledo,  St  Louis  &  Kansas  City  R.   R.,  pending  in  circuit  court  of 
United  States  for  the  northern  district  of  Ohio. 

Where  order  of  confirmation  may  be  made  by  judge  in  vacation. 
See  Central  Trust  Co.  v.  Sheffield,  etc.,  Ry.,  60  Fed.  9. 


No.  907. 

Special  Master's  Deed.(l) 

The  District  Court  of  the  United  States 
for  the  Western  District  of  Tennessee. 

The  Farmers'  Loan  &  Trust  Company 

vs. 
The    Memphis    &    Charleston    Railroad  \  t     p.     • 

Company,   the  Central   Trust   Com-  (  4     /• 

pany   of    New   York    and    Samuel 

Thomas. 

An  indenture,  made  the  26th  day  of  February,  1898,  by 
and  between 

Louis  B.  McFarland,  special  master,  duly  appointed  in  the 
suits  in  equity  hereinafter  mentioned,  party  of  the  first  part, 
and 

Southern  Railway  Company  and  Adrian  Iselin,  Jr.,  Mel- 
ville E.  Ingalls,  Jr.,  and  John  W.  Fewell  (the  said  Iselin,  In- 
galls  and  Fewell  receiving  this  conveyance  as  joint  tenants 
and  not  as  tenants  in  common,  and  hereinafter  being  called  the 
"Purchasers"),  parties  of  the  second  part; 

Witnesseth : 

Whereas,  on  or  about  the  2d  day  of  August,   1895,  the  ^ 
Farmers'   Loan  &  Trust   Company,   trustee,   as  complainant,  i 
filed  its  bill  of  complaint,  in  equity,  in  the  district  court  of  the  i 
United  States  of  America  for  the  western  district  of  Tennes- 
see, western  division,  against  the  Memphis  &  Charleston  Rail- 
road Company,  a  corporation,  created  by  or  existing  under 
the  laws  of  the  states  of  Tennessee,  Alabama  and  Mississippi, 
and  the  Central  Trust  Company  of  New  York  and  Samuel 


JUDICIAL  SALES.  1375 

Thomas,  as  defendants,  in  which  suit  in  equity  it  was  sought 
to  foreclose  the  Memphis  &  Charleston  Railroad  Company's 
consolidated  first  mortgage,  dated  the  20th  day  of  August, 
in  the  year  1877,  and  upon  or  about  that  day  duly  executed, 
•acknowledged  and  delivered  by  said  railroad  corporation  to 
said  the  Farmers'  Loan  &  Trust  Company,  in  which  suit  it  was 
proposed  to  sell  the  whole  of  the  mortgaged  property  and 
premises,  being  the  railroads,  property,  privileges  and  fran- 
chises of  said  the  Memphis  &  Charleston  Railroad  Company, 
as  more  specifically  described  in  said  consolidated  first  mort- 
gage ;  and 

Whereas,  such  proceedings  were  had  in  the  said  cause  that 
on  the  2d  day  of  March,  1897,  a  decree  of  foreclosure  and  sale 
was  entered  therein  by  the  said  district  court  of  the  United 
States  for  the  western  district  of  Tennessee,  western  division, 
at  Memphis,  Tennessee,  and  upon  November  24,  1897,  a  de- 
cree supplemental  thereto  was  also  entered  by  said  court  pur- 
suant to  the  mandate  of  the  circuit  court  of  appeals  for  the 
sixth  circuit ;  and 

Whereas,  similar  decrees  foreclosing  such  mortgage  ancil- 
lary to  said  decree  of  said  district  court  of  the  United  States 
for  the  western  district  of  Tennessee,  western  division,  made 
on  March  2,  1897,  were  subsequently  entered  on  or  about  the 
5th  day  of  April,  1897,  in  similar  suits  brought  by  the  Farm- 
ers' Loan  &  Trust  Company,  complainant,  against  the  said  the 
Memphis  &  Charleston  Railroad  Company,  the  Central  Trust 
Company  of  New  York  and  Samuel  Thomas,  as  defendants, 
in  the  district  court  of  the  United  States  for  the  several  dis- 
tricts hereinafter  mentioned ;  that  is  to  say,  the  eastern  district 
of  Tennessee,  southern  division;  the  northern  district  of  Ala- 
bama, northern  division,  and  the  northern  district  of  Missis- 
sippi, eastern  division;  and 

Whereas,  in  and  by  the  said  decrees  the  said  Louis  B.  Mc- 
Farland,  party  of  the  first  part,  was  appointed  special  master 
to  execute  the  said  foreclosure  decrees  and  to  make  the  sale 
of  property  therein  provided  for  and  directed ;  and 


1376 


SUITS    IN"    EQUITY*. 


Whereas,  in  pursuance  of  such  appointment  the  said  Spe- 
cial Master  afterwards,  to  wit,  on  the  26th  day  of  February, 
1898,  after  due  advertisement  and  notice  of  sale,  as  prescribed 
in  the  said  decrees,  and  in  said  supplemental  decree,  at  public 
auction  at  the  railroad  station  upon  the  railroad  of  the  Mem- 
phis &  Charleston  Railroad  Company,  in  the  city  of  Mem- 
phis and  state  of  Tennessee,  on  the  day  and  at  the  hour  fixed 
by  said  Special  Master  in  his  advertisement  of  sale,  in  ac- 
cordance with  the  request  of  the  solicitors  for  the  complain- 
ant, and  in  the  manner  specified  and  directed  in  the  saitl  de- 
crees ;ind  in  the  said  supplemental  decree,  did  sell  all  and 
singular  the  railroad,  equipment,  property  and  premises, 
rights,  assets,  privileges  and  franchises,  which  the  said  Spe- 
cial Master  was  directed  by  the  said  decrees  and  supplemental 
decree  to  sell,  i.pon  the  terms  and  conditions  in  said  decrees 
and  said  supplemental  decree  fully  and  at  large  set  forth,  to 
which  decrees  reference  is  hereby  specially  and  expressly 
made;  and 

Whereas,  at  such  sale  the  said  Adrian  Iselin,  Jr.,  Melville 
E.  Ingalls,  Jr.,  and  John  W.  Fewell  became  the  purchasers  of 
all  such  railroad  and  property  and  franchises,  offered  and  sold 
as  a  .single  parcel,  for  the  sum  of  two  million  five  hundred 
thousand  dollars  ($2,500,000),  the  said  purchasers  having 
made  such  purchase  as  joint  tenants  and  not  as  tenants  in 
common,  for  the  purpose  and  with  the  intent  of  having  the 
title  of  all  the  said  railroad,  property,  rights,  assets  and  fran- 
chises, vested  in  and  held  by  the  Southern  Railway  Company, 
a  corporation  created  and  existing  under  the  laws  of  the 
state  of  Virginia,  by  an  Act  of  Assembly,  approved  February 
20,  1894,  as  to  all  said  railroad,  real  estate  and  franchises, 
within  the  states  of  Tennessee  and  Alabama,  and,  also,  as  to 
all  equipment,  chattels  and  choses  in  action  sold,  wherever 
situate,  said  corporation  having  complied  with  all  conditions 
of  law  precedent  to  the  transaction  of  business  within  the 
said  states;  and  vested  in  and  held  by  the  Memphis  &  Charles- 
ton Railway  Company,  a  corporation  to  be  organized  by  that 


JUDICIAL   SALES.  1377 

name  in  the  state  of  Mississippi,  as  to  all  of  the  railroad,  real 
estate  and  franchises,  within  the  state  of  Mississippi ;  and 

Whereas,  the  said  purchasers,  in  part  discharge  of  their 
said  bid,  have  paid  to  the  said  Special  Master  the  sum  of  fifty 
thousand  dollars  ($50,000)  in  a  certified  check  upon  the 
National  Union  Bank  of  New  York  City,  and  have  also  deliv- 
ered to  him  the  certificate  of  the  Guaranty  Trust  Company  of 
New  York  that  it  holds,  subject  to  his  order,  and  entitling 
him,  or  his  successor,  on  surrender  thereof  to  receive  the 
same,  2,257  ^^  ^^e  consolidated  first  mortgage  bonds  of  the 
Memphis  &  Charleston  Railroad  Company  for  the  principal 
sum  of  $1,000  each  with  all  unpaid  coupons  attached  to  said 
bonds,  out  of  a  total  issue  of  2,264  oi  such  consolidated  first 
mortgage  bonds,  to  be  canceled  or  credited,  as  provided  in  said 
foreclosure  decree,  and  in  said  supplemental  decree ;  and 

Whereas,  on  the  26th  day  of  February,  1898,  the  said 
Special  Master  did  duly  make  his  report  of  said  sale  to  the 
said  District  Court  of  the  United  States  for  the  western  dis- 
trict of  Tennessee,  western  division,  that  being  the  court  exer- 
cising original  jurisdiction  in  said  suit,  which  said  report, 
and  the  said  sale,  were  by  decree  of  said  court,  entered  of 
record,  duly  approved  and  confirmed,  subject  to  the  com- 
pliance by  the  purchasers  with  all  the  terms  and  conditions 
of  said  foreclosure  decrees  and  sale,  and  the  said  decree  of 
confirmation;  and 

Whereas,  an  order  has  been  made  in  and  by  said  District 
Court  of  the  United  States  for  the  western  district  of  Ten- 
nessee, western  division,  authorizing  and  directing  the  said 
Louis  B.  McFarland,  party  of  the  first  part,  as  Special  Mas- 
ter, upon  the  terms  and  conditions  set  out  in  said  decree  of 
confirmation,  to  sign,  seal,  execute,  acknowledge  and  deliver 
a  conveyance  of  all  and  singular  the  railroad,  property,  prem- 
ises, rights,  assets,  privileges  and  franchises  so  sold  to  the  said 
purchasers  thereof,  subject,  however,  as  recited  in  said  decree 
of  foreclosure  and  said  supplemental  decree,  to  a  certain  stat- 
utory lien  in   favor  of  the  state  of  Tennessee   and   to  the 


1378 


SUITS    IN    EQUITY. 


mortgages,  as  set  forth  in  said  decree  of  foreclosure  and  said 
supplemental  decree,  and  upon  the  condition  that  to  the  ex- 
tent that  the  assets,  or  the  proceeds  of  assets,  in  the  receiv- 
ers' hands  should  be  insufficient,  such  purchasers,  their  suc- 
cessors or  assigns,  should  pay,  satisfy  and  discharge  (a)  any 
unpaid  compensation  which  should  be  allowed  by  the  court  to 
the  receivers;  (b)  any  unpaid  indebtedness  and  obligations 
or  liabilities  which  were  duly  contracted  or  incurred  by  the 
receivers  before  delivery  of  possession  of  the  property  sold; 
and  (c)  also  any  unpaid  indebtedness  or  liability  contracted 
or  incurred  by  said  the  Memphis  &  Charleston  Railroad  Com- 
pany in  the  operation  of  its  railroad,  which  is  prior  in  lien  or 
superior  in  equity  to  such  consolidated  first  mortgage  of  Au- 
gust 20,  1877,  except  such  as  had  been  paid  and  satisfied  out 
of  the  income  of  the  property  in  the  hands  of  the  receivers, 
or  out  of  such  other  assets  upon  the  court  adjudging  the  same 
to  be  prior  in  lien  or  superior  in  equity  to  said  mortgage,  and 
directing  the  payment  thereof,  no  obligation,  nevertheless, 
being  imposed  upon,  or  being  required  to  be  assumed  by,  the 
purchasers  to  pay  or  discharge  either  the  statutory  lien  in  favor 
of  the  state  of  Tennessee,  or  the  said  first  mortgage  bonds,  or 
the  said  second  mortgage  bonds  of  the  Memphis  &  Charleston 
Railroad  Company,  mentioned  and  described  in  said  decrees 
and  in  said  supplemental  decree,  and  subject  to  which  the 
property  was  sold;  and  subject,  also  to  all  and  singular  the 
terms  and  conditions  in  said  decree  of  foreclosure  and  said 
supplemental  decree  set  forth,  and  subject,  also,  to  pay  into 
the  registry  of  the  District  Court  of  the  United  States  for  the 
western  district  of  Tennessee,  western  division,  all  such  sums 
as  had  been,  or  might  be,  ordered  by  said  court  for  the  pay- 
ment of  such  claims  and  liabilities,  which  are  entitled  to  prefer- 
ence in  payment  out  of  the  proceeds  of  sale  prior  to  the  bonds 
secured  by  said  mortgage  of  the  Memphis  &  Charleston  Rail- 
road Company,  and  subject,  also,  to  all  other  claims  filed  in 
the  said  cause,  but  only  when  and  as  the  said  District  Court 
of  the  United   States  for  the  western  district  of  Tennessee, 


JUDICIAL    SALES.  1379 

western  division,  should  allow  such  claims  and  adjudge  the 
same  to  be  prior  in  lien  to  mortgage  foreclosed  in  said  cause, 
and  in  accordance  with  the  order  or  orders  of  the  court  allow- 
ing such  claims  and  adjudging  with  respect  thereto;  and 

Whereas,  at  the  time  of  said  order  of  the  said  District  Court 
of  the  United  States  for  the  Western  District  of  Tennessee, 
western  division,  this  indenture  and  the  form  thereof  was 
submitted  to,  approved  by,  and  filed  with,  said  court;  and 

Whereas,  the  said  purchasers  have  complied  with  and  ful- 
filled all  the  terms  and  conditions  of  the  said  order  and  de- 
crees, so  far  as  the  same  are  now  ripe  for  performance;  and 
are  entitled  to  a  conveyance  of  the  property  so  purchased  by 
and  confirmed  to  them  : 

Now,  therefore,  this  indenture  witnesseth :  That  the  said 
party  of  the  first  part,  to  wit : 

Louis  B.  McFarland,  as  such  Special  Master  as  aforesaid, 
for  and  in  consideration  of  the  premises  and  of  the  sum 
of  two  million  and  five  hundred  thousand  dollars  ($2,500,- 
000),  paid  and  to  be  paid  in  accordance  with  the  terms  of 
the  said  decrees,  and  in  consideration  that  the  said  parties  of 
the  second  part,  their  successors  or  assigns,  will  in  all  respects 
comply  with  the  conditions  of  said  decrees  of  foreclosure  and 
sale; 

Has  granted,  bargained,  transferred,  sold  and  convey<;d, 
and  by  these  presents  does  hereby  grant,  bargain,  transfer, 
sell  and  convey: 

First.  Unto  the  said  Southern  Railway  Company,  its  suc- 
cessors and  assigns,  forever,  the  said  railroad,  real  estate  and 
franchises,  within  the  states  of  Tennessee  and  Alabama,  and 
also  all  estate,  equipment,  personal  property  and  choses  in 
action  wherever  situate ;  including  also  all  income,  proceeds  of 
income,  bills  and  accounts  receivable,  cash  and  other  property 
received  by  the  said  receivers,  and  all  causes  of  action,  and 
judgments,  by  them  acquired  or  obtained  in  the  management 
or  operation  of  the  said  mortgaged  premises,  to  be  embraced 
in  the  conveyance  thereof  or  pertaining  thereto ;  and  also  any 


1380  SUITS    IN    EQUITY. 

and  all  property  of  the  said  railroad  company,  appurtenant 
to  the  premises,  and  required  for  use  in  connection  with  or  for 
the  purpose  of  said  railroad  or  the  business  of  said  railroad 
company  and  vested  in  or  standing  in  the  name  of  the  said 
receivers,  or  to  which  the  said  receivers  in  any  manner  have 
acquired  title;  (not  including,  however,  the  said  railroad,  real 
estate,  and  franchises,  within  the  state  of  Mississippi,  which 
hereinafter  are  conveyed  to  the  said  purchasers,  or  to  their 
successors,  the  Memphis  &  Charleston  Railway  Company, 
their  or  its  successors  or  assigns),  the  said  property  conveyed 
to  the  said  Southern  Railway  Company  being  more  particu- 
larly described  as  follows,    hat  is  to  say : 

All  and  singular  the  rights,  privileges,  interests,  franchises, 
lands,  tenements,  hereditaments,  appurtenances  and  property, 
of  every  description,  whether  real,  personal  or  mixed,  em- 
braced or  included  in  the  said  decrees  of  sale  and  the  sale 
pursuant  hereto,  that  is  to  say : 

The  following  railroads  of  the  Memphis  &  Charleston 
Railroad  Company  in.the  states  of  Tennessee  and  Alabama. 

All  and  singular  the  main  line  of  railroad,  formerly  of  the 
said  the  Memphis  &  Charleston  Railroad  Company,  extending 
from  the  point  of  commencement  thereof  in  the  city  of  Mem- 
phis, in  the  state  of  Tennessee,  via  Corinth,  in  the  state  of 
Mississippi,  and  Huntsville,  in  the  state  of  Alabama,  to  the 
terminus  thereof  in  Stevenson,  in  the  said  state  of  Alabama, 
connecting  there  with  the  Nashville  &  Chattanooga  railroad, 
being  a  distance  of  two  hundred  and  seventy-two  miles,  be  the 
same  more  or  less  (excepting  the  portion  of  said  railroad 
which  lies  in  the  state  of  Mississippi)  ;  and  also  the  branch  of 
said  railroad,  situate  in  the  state  of  Tennessee,  known  as  the 
Somerville  &  Moscow  branch,  extending  from  Moscow,  on 
the  main  line,  to  Somerville,  a  distance  of  about  fourteen 
miles,  be  the  same  more  or  less;  and  also  the  branch  of  said 
railroad,  situate  in  the  state  of  Alabama,  extending  from 
Tuscumbia,  on  the  main  line,  to  Florence,  a  distance  of  about 
five  miles,  be  the  same  more  or  less,  and  including  the  bridge 


JUDICIAL   SALES.  1381 

across  the  Tennessee  river,  near  Florence ;  and  also  the  Wash- 
ington street  branch,  so-called,  of  said  railroad,  extending 
from  the  depot  of  said  main  line  in  the  city  of  Memphis, 
through  Washington  street  and  Centre  Landing,  to  the  Mis- 
sissippi river,  and  the  depot  grounds  and  wharves  on  said 
river,  and  all  the  rights  and  privileges  of  said  railroad  com- 
pany in  respect  of  the  use  of  the  streets  and  wharves  and 
levee  on  the  Mississippi  river;  and,  also,  all  and  singular  the 
right  of  transportation  of  the  passenger  cars  and  freight  cars 
of  the  said  the  Memphis  &  Charleston  Railroad  Company  on 
and  over  the  railroad  between  Stevenson  in  Alabama  and 
Chattanooga  in  Tennessee,  which  said  the  Memphis  &  Charles- 
ton Railroad  Company,  at  the  date  of  the  execution  of  said 
mortgage  —  namely,  August  20,  1877,  had  or  was  entitled  to, 
or  could  then,  or  since  then,  claim  under  or  in  virtue  of  the 
contract  of  the  date  of  June  23  and  July  26,  1858,  made  be- 
tween the  Memphis  &  Charleston  Railroad  Company  and  the 
Nashville  &  Chattanooga  Railroad  Company,  and  all  the 
rights  and  privileges  whatsoever,  for  or  in  respect  to  the 
use  of,  or  transportation  over,  the  line  of  railroad  between 
Stevenson  and  Chattanooga,  now  belonging  to  the  Nashville, 
Chattanooga  and  St.  Louis  railway,  which  the  said  the  Mem- 
phis &  Charleston  Railroad  Company  holds  or  is  in  any  wise 
entitled  unto,  or  could,  at  the  date  of  execution  of  said  mort- 
gage —  namely,  August  20,  1877  —  ^^  ^t  any  time  since  then, 
claim,  either  under  or  in  virtue  of  the  before-mentioned  con- 
tract of  June  and  July,  eighteen  hundred  and  fifty-eight,  or 
otherwise,  howsoever,  together  with  all  and  singular  the  road- 
way or  track  of  the  aforesaid  main  line  of  railroad  extending 
from  Memphis  to  Stevenson  (except  the  portion  thereof  in 
Mississippi)  and  of  the  said  several  branches  respectively,  and 
the  superstructure  and  rails  laid  or  to  be  laid  thereon  respec- 
tively, and  all  the  appurtenances  thereof,  and  all  the  sidings, 
turnouts,  bridges,  wharves,  viaducts,  culverts,  walls,  fences, 
ways  and  rights  of  way,  depots,  station  houses,  engine  houses, 
car  houses,  freight  houses,  wood  houses,  depot  grounds  and 


1382 


SUITS    IN    EQUITY. 


lands  procured,  provided,  or  intended  for  use  for  that  pur- 
pose; building-  and  repair  shops,  machine  shops,  and  lands 
used  or  procured,  or  intended  for  sites  thereof,  and  other 
buildings,  structures,  lands  and  improvements  whatsoever, 
leases  and  leasehold  interests,  contracts,  easements  and  privi- 
leges belonging  or  appertaining  to,  or  used  or  procured,  or 
designed  to  be  used  for,  the  purposes  of  or  in  connection  with 
the  said  main  line  of  railroad  and  branches,  respectively,  or 
the  maintenance  or  operation  thereof,  or  of  any  part  thereof, 
at  the  date  of  the  execution  of  said  mortgage  —  namely,  on 
the  20th  day  of  August,  1877,  or  at  any  time  thereafter;  and 
also  all  the  locomotives,  tenders,  passenger  cars,  baggage  cars, 
freight  cars  and  other  cars,  and  all  other  rolling  stock  or  equip- 
ment, and  all  machinery,  tools  and  implements,  rails,  chairs 
and  spikes  and  other  materials  whatsoever,  owned  or  pos- 
sessed by  the  said  the  Memphis  and  Charleston  Railroad 
Company,  at  the  date  of  the  execution  of  said  mortgage  — 
namely,  on  the  20th  day  of  August,  1877  —  or  at  any  time 
thereafter,  for  the  uses  or  purposes  of,  or  designed  for  use 
in  connection  with,  or  for  the  operation,  maintenance  or  rep- 
aration of,  the  said  main  line  of  railroad  and  branches  re- 
spectively, or  the  equipment  or  appurtenances  thereof,  any,  all 
the  engines,  cars  and  rolling  stock  or  equipment  of  any  kind, 
machinery,  tools,  implements,  rails  and  other  materials,  which 
now  belong  or  appertain  to  or  are  in  use  or  on  hand,  designed 
for  use  for  the  purposes  of  said  main  line  of  railroad  and 
branches,  respectively,  or  any  part  thereof,  or  have  belonged 
or  appertained  to  or  been  in  use  or  on  hand,  designed  for  use 
for  the  purposes  of  said  main  line  of  railroad  and  branches, 
respectively,  or  any  part  thereof,  at  any  time  or  times  after  the 
date  of  the  execution  of  said  mortgage  —  namely,  August 
20,  1877  —  and  all  the  lands  and  real  estate  whatsoever,  of 
any  and  every  kind  whatsoever,  and  all  improvements  thereon, 
situate  in  the  states  of  Tennessee  or  Alabama,  respectively, 
which  were  owned  or  possessed  by,  or  which  belonged  to,  the 
said  the  Memphis  &  Charleston  Railroad  Company  at  the  date 


JUDICIAL    SALES.  1383 

of  the  execution  of  said  mortgage  —  namely,  August  20,  1877 
—  and  also  all  and  singular  the  rights,  privileges  and  fran- 
chises whatsoever,  which  the  said  the  Memphis  &  Charleston 
Railroad  Company  has  acquired  or  become  possessed  of  or 
entitled  unto,  since  the  said  date  of  the  execution  of  said  mort- 
gage, for  or  in  respect  of,  or  for  the  uses  or  purposes  of,  the 
said  main  line  of  railroad  and  branches  respectively,  or  the 
operation  or  maintenance  thereof,  and  also  all  the  tolls  and 
income  of  the  said  main  line  of  railroad  and  branches  re- 
spectively, together  with  all  and  singular  the  tenements,  here- 
ditaments and  appurtenances  unto  the  premises  aforesaid,  or 
any  of  them,  or  any  part  thereof  belonging  or  in  any  wise 
appertaining;  and  the  reversion  or  reversions,  remainder  and 
remainders,  rents,  issues  and  profits  thereof,  and  all  the  estate, 
right,  title,  interest,  property,  possession,  claim  and  demand 
whatsoever,  as  well  at  law  as  in  equity,  of  the  said  the  Mem- 
phis &  Charleston  Railroad  Company,  of,  in  and  to  the  same, 
and  every  part  and  parcel  thereof,  with  the  appurtenances. 

Subject,  however,  to  a  certain  statutory  lien  in  the  nature 
of  a  mortgage,  originally  created  and  existing  in  favor  of 
the  state  of  Tennessee,  and  mentioned  and  described  in  the 
said  mortgage  of  August  20,  1877 ;  and  also  subject  to  the  lien 
of  a  certain  first  mortgage  or  deed  of  trust  dated  May  i,  1854, 
executed  by  said  the  Memphis  &  Charleston  Railroad  Com- 
pany to  James  Punnett,  G.  B.  Lamar  and  Thomas  Feam,  as 
trustees,  and  also  subject  to  the  lien  of  a  certain  second 
mortgage  or  deed  of  trust  dated  January  i,  1867,  made  by 
said  the  Memphis  &  Charleston  Railroad  Company  to  Gusta- 
vus  L.  Masten,  George  W.  Neal  and  William  C.  Rehren,  as 
trustees,  said  first  mortgage  and  said  second  mortgage  having 
been  extended  by  certain  indentures,  both  dated  September 
7,  1880,  and  being  more  particularly  described  in  said  decrees. 

Together  with  all  the  corporate  estate,  equity  of  redemp- 
tion, rights,  privileges,  immunities  and  franchises  of  said  the 
Memphis  &  Charleston  Railroad  Company,  and  all  the  tolls, 
fares,  freights,  rents,  incomes,  issues  and  profits  of  the  said 


1384 


SUITS    IN    KOUITY. 


railroads,  and  all  interest  and  claims  and  demands  of  every 
nature  and  description,  and  all  the  reversion  and  reversions, 
remainder  and  remainders  thereof,  including  all  the  said  mort- 
gaged premises  and  property,  in  said  decrees  directed  to  be 
sold,  at  any  time  owned  or  acquired  by  and  now  in  the  pos- 
session of  said  the  Memphis  &  Charleston  Railroad  Company, 
or  the  receivers  thereof,  and  including  also  all  income,  pro- 
ceeds of  income,  bills  and  accounts  receivable,  cash  and  other 
property  received  by  the  receivers,  and  all  causes  of  action, 
and  judgments,  by  them  acquired  or  obtained  in  the  manage- 
ment or  operation  of  the  mortgaged  premises  embraced  in 
this  conveyance  or  pertaining  thereto,  and  also  any  and  all 
property  of  the  said  railroad  company  appurtenant  to  the 
premises  and  required  for  use  in  connection  with  or  for  the 
purposes  of  said  railroad,  or  the  business  of  said  railroad 
company,  and  vested  in  or  standing  in  the  name  of  the  said 
receivers,  or  to  which  the  said  receivers  in  any  manner  have 
acquired  title ;  excepting,  however,  all  such  leases  and  con- 
tracts sold  with  the  said  property  as  the  parties  of  the  second 
part  shall  within  ninety  days  after  the  delivery  of  this  deed 
elect  not  to  assume  and  adopt ;  and 

Second.  Unto  the  purchasers  and  to  their  successor,  the 
Memphis  &  Charleston  Railway  Company,  when  organized, 
their  or  its  successors  and  assigns : 

All  and  singular  the  railroad,  formerly  of  the  said  the 
Memphis  &  Charleston  Railroad  Company,  in  the  state  of 
Mississippi,  beginning  at  a  point  on  the  Mississippi  state  line, 
near  Wenasoga,  a  point  in  Alcorn  county,  upon  the  northern 
boundary  of  Mississippi,  and  thence  running  easterly,  through 
Alcorn  county  and  Tishomingo  county,  to  a  point  upon  the 
eastern  boundary  of  Mississippi,  between  luka,  in  said  last- 
mentioned  county,  and  Margerum,  in  the  state  of  Alabama, 
being  in  all  about  thirty-five  miles  in  length  within  the  said 
state  of  Mississippi;  being  part  of  the  same  railroad  referred 
to  in  an  Act  of  the  Legislature  of  the  state  of  Mississippi, 
entitled  "  An  Act  to  grant  the  right  of  way  to  the  Mem- 


JUDICIAL    SALES.  1385 

phis  &  Charleston  Railroad  Company,  and  for  other  pur- 
poses," approved  March  i,  1854; 

A  more  full  and  particular  description  of  the  property 
intended  to  be  conveyed  by  this  instrument  being  contained 
in  said  decree  of  the  2d  of  March,  1897,  and  in  the  supple- 
mental decree  of  November  24,  1897,  respectively,  to  which 
reference  is  hereby  made. 

To  have  and  to  hold,  all  and  singular,  the  above-mentioned 
railroads,  premises,  rights,  privileges,  interests,  franchises, 
lands,  tenements,  hereditaments,  appurtenances  and  property, 
of  every  description,  whether  real,  personal  or  mixed,  herein 
conveyed  or  intended  to  be  conveyed,  unto  the  said  Southern 
Railway  Company,  its  successors  and  assigns,  as  to  all  the  rail- 
road, real  estate  and  franchises,  within  the  states  of  Tennes- 
see and  Alabama,  and  as  to  all  the  equipment,  chattels  and 
choses  in  action,  wherever  situate;  and  unto  the  said  pur- 
chasers, and  their  successor,  the  Memphis  &  Charleston  Rail- 
way Company,  when  organized,  their  or  its  successors  and  as- 
signs, as  to  all  of  the  railroad,  real  estate  and  franchises,  with- 
in the  state  of  Mississippi ;  and  the  said  Southern  Railway 
Company  is,  and  the  said  Memphis  &  Charleston  Railway 
Company,  when  organized,  shall  be,  hereby  invested  with  the 
same  (the  said  Southern  Railway  Company,  as  to  all  said 
railroad,  real  estate  and  franchises,  within  the  states  of  Ten- 
nessee and  Alabama,  and  as  to  all  said  equipment  chattels  and 
choses  in  action,  wherever  situate;  and  the  said  purchasers,  or 
their  successor,  the  Memphis  &  Charleston  Railway  Company, 
as  to  all  the  railroad,  real  estate  and  franchises,  within  the 
state  of  Mississippi)  as  fully  and  completely  as  said  the  Mem- 
phis &  Charleston  Railroad  Company,  one  of  the  defendants 
in  said  suit  in  equity,  or  said  receivers,  held  or  enjoyed,  or 
were,  respectively,  entitled  to  hold  or  enjoy,  or  were  seized 
of  or  entitled  to,  at  the  time  of  the  entry  of  the  said  decree,  or 
at  the  time  of  the  commencement  of  said  suits,  or  which  said 
receivers  or  either  of  them  have  since  acquired ;  freed  and  dis- 
charged from  the  lien  and  encumbrance  of  the  said  mortgage 


1386 


SUITS    IN    EQUITY. 


or  deed  of  trust  foreclosed  or  barred  by  the  said  decrees,  and 
freed  from  all  equity  of  redemption  of  said  mortgagor,  the 
Memphis  &  Charleston  Railroad  Company,  and  of  all  equity 
of  redemption  and  of  all  other  claims  of  all  persons  whomso- 
ever, claiming  or  to  claim  by,  under  or  through,  the  said  com- 
pany, except  as  mentioned  and  reserved  in  said  decree,  as 
fully  and  absolutely  as  the  said  Louis  B.  McFarland,  as  Spe- 
cial Master,  may  or  ought,  by  virtue  of  said  decrees,  to  bar- 
gain, sell,  release,  assign  or  convey,  subject,  however,  to  the 
said  statutory  lien  in  favor  of  the  state  of  Tennessee  and  to 
the  said  two  mortgages,  as  set  forth  in  said  decree  of  fore- 
closure, and  said  supplemental  decree,  and  upon  the  condition 
that,  to  the  extent  that  the  assets,  or  the  proceeds  of  assets 
in  the  receivers'  hands  should  be  insufficient,  the  said  Southern 
Railway  Company  and  the  said  purchasers,  its  or  their  suc- 
cessors or  assigns,  should  pay,  satisfy  and  discharge  (a)  any 
unpaid  compensation  which  should  be  allowed  by  the  court  to 
•the  receivers;  (b)  any  unpaid  indebtedness  and  obligations 
•or  liabilities  which  were  duly  contracted  or  incurred  by  the 
receivers  before  delivery  of  possession  of  the  property  sold; 
and  (c)  also  any  unpaid  indebtedness  or  liability  contracted  or 
incurred  by  said  the  Memphis  &  Charleston  Railroad  Com- 
pany in  the  operation  of  its  railroad,  which  is  prior  in  lien 
or  superior  in  equity  to  the  consolidated  first  mortgage  of 
August  20,  1877,  except  such  as  has  been  paid  and  satisfied 
out  of  the  income  of  the  property  in  the  hands  of  the  re- 
ceivers, or  out  of  such  other  assets  upon  the  court  adjudging 
the  same  to  be  prior  in  lien  or  superior  in  equity  to  said  mort- 
gage, and  directing  the  payment  thereof,  all  payments  for  any 
such  purpose  made  by  the  parties  of  the  second  part,  their 
•successors  or  assigns,  in  advance  of  the  accounting  and  dis- 
•charge  of  the  receivers,  to  be  treated  as  advances,  and  subject 
to  final  adjustment  upon  such  accounting;  no  obligation,  nev- 
ertheless, being  imposed  upon,  or  being  required  to  be  as- 
sumed by,  the  Southern  Railway  Company,  or  by  the  pur- 
chasers or  their  successor,  the  Memphis  &  Charleston  Rail- 


JUDICIAL    SALES.  1387 

way  Company,  its  or  their  successors  or  assigns,  to  pay  or 
discharge  either  the  said  statutory  lien,  or  the  said  first  mort- 
gage bonds,  or  the  said  second  mortgage  bonds,  of  the  Mem- 
phis &  Charleston  Railroad  Company,  hereinbefore  referred 
to,  and  subject  to  which  the  property  was  sold,  and  subject 
also  to  all  and  singular  the  terms,  conditions,  reservations 
and  obligations  in  said  decree  of  foreclosure,  and  said  sup- 
plemental decree  and  said  decree  of  confirmation,  set  forth ; 
and  the  grantees,  parties  hereto  of  the  second  part  agreeing  to 
take  the  property  so  sold  as  aforesaid,  subject  to  the  perform- 
ance by  them,  or  by  their  successors  or  assigns,  of  all  pending 
contracts  in  respect  thereof,  theretofore  lawfully  made  .by 'the 
receivers,  the  said  grantees,  and  their  successors  or  ^assigns, 
having,  nevertheless,  the  right,  within  ninety  days  after  the 
completion  of  the  sale  and  delivery  of  this  deed,  to  elect  wheth- 
er or  not  to  assume  or  adopt  any  lease  or  contract  sold  with 
the  railroad  and  other  property  and  franchises,  neither  they, 
nor  their  successors  nor  assigns,  to  be  held  to  have  assumed  any 
of  said  contracts  or  leases,  which  they  shall  so  elect  not  to 
assume;  provided,  however,  that  upon  publication  by  the 
Special  Master,  when  ordered  by  the  court,  as  provided  in 
said  decree,  of  a  notice,  requiring  holders  of  any  claims  to 
present  the  same  for  allowance,  any  such  claims  which  shall 
not  be  so  presented  or  filed  within  the  period  of  six  months 
after  the  first  publication  of  such  notice,  shall  not  be  enforce- 
able against  the  property  sold,  or  against  the  said  grantees, 
or  their  successors  or  assigns;  and  subject,  also,  to  the  pay- 
ment by  said  grantees,  their  successors  or  assigns,  of  all  such 
sums  in  cash  as  may  be  required  in  order  to  pay  all  costs  and 
expenses  of  the  sale,  the  compensation  of  the  special  master, 
end  a^  charges,  compensations,  allowances  and  disbursements, 
payable  out  of  the  purchase  price  bid  for  the  premises,  as  the 
same  shall  be  fixed  and  allowed  hereafter  by  the  court : 

And  subject  also  to  all  the  conditions  and  reservations  of 
said  decree  of  sale,  and  of  said  supplernental  decree,  and  of 
said  decree  confirmins:  said  sale,  entered  in  said  District  Court 


138« 


SUITS    IN    EQUITY. 


of  the  United  States  for  the  western  district  of  Tennessee, 
western  division,  that  being  the  court  exercising  original  juris- 
diction of  said  foreclosure  suit,  including  the  reservation  to 
said  court  of  the  power  to  retake  and  to  resell  the  premises 
conveyed,  or  any  parcel  thereof,  in  case  the  said  parties  of  the 
second  part,  their  successors  or  assigns,  shall  fail  to  pay  any 
sum  required  to  be  paid  by  them  under  said  decrees  within  the 
time  specified  in  said  decrees,  respectively,  after  the  entry  of 
an  order  requiring  such  payment. 

It  is  hereby  understood  and  agreed  that  no  personal  cove- 
nant or  liability  is  to  be  implied  from  this  deed  against  the 
said  party  of  the  first  part  as  Special  Master,  except  that  he 
has  not  in  his  official  capacity  made  any  prior  conveyance  of 
the  property  herein  mentioned  or  of  any  part  thereof. 

And  whereas,  in  order  to  expedite  the  recording  of  this 
deed,  eight  counterparts  thereof  are,  by  order  of  the  District 
Court  of  the  United  States  for  the  western  district  of  Ten- 
nessee, western  division,  simultaneously  executed,  acknowl- 
edged and  delivered  by  the  party  of  the  first  part  to  the  parties 
of  the  second  part. 

Now,  therefore,  this  indenture  further  witnesseth,  that  al- 
though eight  counterparts  are  simultaneously  executed,  ac- 
knowledged and  delivered  by  the  party  of  the  first  part  to  the 
parties  of  the  second  part,  to  the  end  that  all  or  any  one  or 
more  thereof  may  be  recorded,  any  one  or  more  of  such  coun- 
terparts, when  executed,  acknowledged  and  delivered,  shall 
severally  or  collectively  be  deemed  to  be  an  original,  and  for 
all  intents  and  purposes  be  one  instrument. 

In  witness  whereof,  the  party  of  the  first  part  hereto  has 
hereunto  set  his  hand  and  seal  the  day  and  year  first  above 
written. 

Words  "  payment  "  to  "  and,"  inclusive,  in  lines  20,  21  and 
22  on  p.  4,  and  also  in  lines  30,  31  and  32  on  p.  11,  stricken 
out  before  execution.  L.  B.  McFarland, 

[Seal.']  Special  Master. 


JUDICIAL   SALES.  1389 

Signed,  sealed  and  delivered  in  presence  of 

Francis  Lynde  Stetson. 
W.   A.   Henderson. 

[OMcial  Seal.}  H,  S.  Hay  ley, 

Notary  Public  for  the  County  of 
State  of  Tennessee,  Shelby,    State   of   Tennessee. 

Shelby  County,    ss. 

Personally  appeared  before  me,  H.  S.  Hayley,  a  notary  pub- 
lic of  the  said  county  of  Shelby,  in  this  state  of  Tennessee,  duly 
and  legally  appointed,  commissioned  and  qualified  within  my 
said  county,  Louis  B.  McFarland,  the  within-named  grantor 
and  bargainor,  with  whom  I  am  personally  acquainted,  being 
the  same  person  described  in  and  who  executed  the  foregoing 
instrument,  and  he  then  and  there  being  informed  of  the  con- 
tents of  the  conveyance,  acknowledged  before  me  that  he 
voluntarily  signed,  executed  and  delivered  the  within  and  fore- 
going instrument  on  the  day  the  same  bears  date  for  the  pur- 
poses therein  contained ;  and  I,  at  the  same  time,  at  his  re- 
quest, witnessed  his  execution,  signature  and  delivery  of  said 
conveyance  and  signed  my  name  as  one  of  the  attesting  wit- 
nesses thereto. 

And  I  hereby  certify  that  I  am  a  duly  appointed  notary 
public  in  and  for  said  county  and  state;  that  I  was  appointed 
on  the  26th  day  of  October,  1894,  and  that  my  commission 
as  such  notary  public  expires  with  the  26th  day  of  October, 
1898. 

Witness  my  hand  and  official  seal,  at  office,  this  26th  day 
of  February,  1898.  H.  S.  Hayley, 

[OfRcial  Seal.~\  Notary  Public.  Shelby  County, 

Tennessee. 

(i)  The  foregoing  masters'  deed  is  copied  from  the  record  in  the 
case  of  The  Farmers'  Loan  &  Trust  Co.  vs.  The  Memphis  &  Charleston 
R.  R.  Co.,  pending  in  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Tennessee,  and  constitutes  a  part  of  the  reorganiza- 
tion proceedings,  whereby  the  Southern  Ry.  acquired  the  Memphis  & 
Charleston  R.  R.  See  Rothschild  vs.  Memphis  &  Charleston  R.  R.  Co., 
113  Fed.  476. 


1390  SUITS    IN    EQUITY. 


NE  EXEAT. 

No.  908. 

Motion  for  Writ  of  Ne  Exeat.  (1) 
[Caption.] 

Now  comes  the  plaintiff  in  the  above  entitled  cause,  by  R.  X., 
his  attorney,  and  moves  this  honorable  court  to  grant  a  writ 
of  ne  exeat  in  accordance  with  the  prayer  of  the  bill  in  this 
cause.  R.  X., 

Attorney  for  Plaintiff. 

(1)  This  motion  may  be  without  notice  and  the  writ  granted  ex 
parte.  Dan,  Chan.  Practice  (6th  Am.  ed.)  1706;  1  Smith  Chan.  Prac. 
580;  Bates'  Fed.  Eq.,  Sec.  573;  Foster's  Fed.  Prac,  5th  ed.,  pp.  1045 
to  1051. 


No.  909. 

Affidavit  to  Obtain  a  Ne  Exeat.  (1) 

{Caption.'] 

State  of , 

County  of ,  ss. 

I,   W.   B.,   one  of  the   above-named  plaintiffs,   being  duly 
sworn,  deposes  and  says  that  the  above  defendant  is  actually 

and  justly  indebted  to  the  said  plaintiffs  in  the  sum  of 

dollars,  for  [here  state  the  ground  and  circumstances  of  in- 
debtment]  ;  for  the  recovery  of  which  the  said  plaintiffs  did, 

on  the  day  of  — -. — ,  file  their  bill  of  complaint  herein 

against  the  said  defendant ;  to  which  said  bill  the  said  defend- 
ant has  not  yet  answered ;  and,  being  so  indebted,  the  said 
defendant  has  lately  declared  in  the  presence  of  each  of  the 
plaintiffs,  and  informed  them,  and  this  deponent  verily  be- 


NE  EXEAT.  1391 

lieves,  that  he  will  without  delay  leave  the  United  States  and 
go  to  live  and  reside  in  parts  beyond  the  seas  without  these 
United  States  and  out  of  the  jurisdiction  of  this  court.  And 
this  deponent  has  no  doubt,  but  verily  believes,  that  if  the 
said  defendant  should  be  allowed  to  depart  out  of  this  district, 
the  plaintiffs'  debt  will  either  be  entirely  lost  to  them,  or  the 
recovery  thereof  greatly  endangered. 

Sworn,  etc.  W.  B, 

[Certificate  of  allowance.'] 

(1)  It  is  well  established  that  the  writ  will  not  issue  without  a 
positive  affidavit  and  that  an  affidavit  as  to  information  and  belief  only 
will  not  be  sufficient.  Gernon  v.  Boecaline,  No.  5637  Fed.  Cas.,  2 
Wash.  C.  C.  130;  Danl.  Ch.  Prac.  (6th  Am.  ed.)  1706;  McDonough  v. 
Gaynor,  18  N.  J.  Eq.  249;  R.  S.  Sec.  717;  Foster's  Fed.  Prac,  5th  ed.. 
Sec.  328. 


No.  910. 

Order  for  Writ  of  Ne  Exeat  to  Issue.  (1) 

Upon  motion,  etc.,  and  upon  reading  an  affidavit  of,  etc., 
filed,  etc.   [if  before  appearance,  and  the  clerk's  certificate  of 

the  filing  of  the  plaintiff's  bill  in  this  cause  on  the day  of 

]  ;  and  the  plaintiff  by  his  counsel  undertaking,  etc.   [as 

to  damages]  :  This  court  orders  that  a  writ  [or,  one  more 
writ,  or,  writs]  of  ne  exeat  republica  do  issue  against  the  said 
defendant,  A.  B.,  until  this  court  make  another  order  to  the 
contrary;  and  the  said  writ  [or,  writs]  is  [or,  are]  to  be 
marked  for  security  in  the  "Sum  of dollars. 

(1)  The  writ  may  be  issued  by  the  supreme  court  or  a  district 
court  or  a  justice  or  district  judge.  Judicial  Code,  Sec.  261;  as  to 
power  of  a  court  sitting  in  bankruptcy  to  issue  a  writ  to  restrain  the 
bankrupt  within  the  district.  See  In  re  Berkowitz,  173  Fed.  1012; 
In  re  Cohen,  136  Fed.  999;  Lewis  v.  Shainwald,  48  Fed.  492.  This 
writ  does  not  contravene  state  statutes  prohibiting  imprisonment  for 
debt.    Gooding  v.  Reed,  177  Fed.  684.  101  C.  C.  A.  310. 


1392  SUITS   IN    EQUITY. 

No.  911. 

Writ  of  Ne  Exeat  Republica.(l) 

The  United  States  of  America, 
District  of ,  ss. 

The  President  of  the  United  States  of  America  to  the  Marshal 
of  the District  of ,  Greeting : 

Whereas,  it  is  represented  to  us  in  our  district  court  of  the 

United  States  for  the district  of ,  in  equity,  on  the 

part  of  A.  B.,  plaintiff,  against  C.  D,,  defendant  (among  other 
things),  that  he.  the  said  defendant,  is  greatly  indebted  to  the 
said  plaintiff,  and  designs  quickly  to  go  into  parts  without 
the  United  States  (as  by  oath  made  on  that  behalf  appears), 
which  tends  to  the  great  prejudice  and  damage  of  the  said 
plaintiff ; 

Therefore,  in  order  to  prevent  this  injustice,  we  do  hereby 
command  you  that  you  do,  without  delay,  cause  the  said  C.  D. 
personally  to  appear  before  you,  and  give  sufficient  bail  or 

security  in  the  sum  of dollars  that  the  said  C.  D.  will 

not  go  or  attempt  to  go  into  parts  without  the  United  States 
without  leave  of  our  said  court ;  and  in  case  the  said  C.  D. 
shall  refuse  to  give  such  bail  or  security,  then  you  are  to  com- 
mit the  said  C.  D.  to  our  next  prison,  there  to  be  kept  in  safe 
custody  until  he  shall  do  it  of  his  own  accord :  and  when  you 
shall  have  taken  such  security  you  are  forthwith  to  make  and 
return  a  certificate  thereof  to  us  in  our  said  district  court  of 

the  United  States  for  the district  of distinctly  and 

plainly  under  your  hand,  together  with  this  writ. 

[Add  teste.] 

(1)  See  Foster's  Fed.  Prac,  5th  ed.,  pp.  1045  to  1051,  Sees.  326, 
327,  328;  Desty's  Fed.  Proc,  Sec.  237;  R.  S.,  Sec.  717.  See  also  Beach's 
Modern  Eq.  Prac,  chapter  on  ne  exeat.  Generally,  on  this  subject. 
See  Lewis  v.  Shainwald,  46  Fed.  839,  48  Fed.  892,  69  Fed.  487;  Griswold 
V.  Hazard,  141  U.  S.  263,  35  L.  Ed.  681. 


NE    EXEAT.  1393 

No.  912. 

Bond  to  Marshal  upon  a  Ne  Exeat. 

Know  all  men  by  these  presents  that  we,  C.  D.,  of  the  city 

of ,  and  E.  F.  and  G.  H.,  of  the  same  place,  are  held  and 

jfirmly  bound  unto  H.  C,  United  States  marshal  for  the 

district  of ,  in  the  penal  sum  of dollars,  to  be  paid 

to  the  said  H.  C,  United  States  marshal  for  the district 

of  ,  as  aforesaid,  or  his  assigns.     For  which  payment 

well  and  truly  to  be  made  we  bind  ourselves  jointly  and  sev- 
erally, and  our  and  each  of  our  heirs,  executors,  and  adminis- 
.trators,  firmly  by  these  presents.     Sealed  with  our  seals,  and 
dated  the day  of ,  18 — . 

Whereas,  the  above-named  C.  D.  has  been  arrested  upon  a 
writ  of  ne  exeat  issuing  out  of  and  under  the  seal  of  the 

district  court  of  the  United  States  for  the  district  of 

,  in  a  certain  cause  therein  pending,  wherein  A.   B.   is 

plaintiff,  and  the  said  C.  D.  is  defendant,  and  is  now  in 
custody  of  the  said  H.  C,  marshal  as  aforesaid,  by  virtue 
thereof : 

Now,  the  condition  of  this  obligation  is  such  that  if  the 

said  C.  D.  shall  not  depart  from  or  leave  this  district 

of  without  the  permission  of  the  said  court,  then  this 

obligation  to  be  void ;  otherwise  to  be  and  remain  in  full  force 
and  virtue.  C.  D.   [Seal.'] 

E.  F.   [Seal.'] 
G.  H.   [Seal.] 

[Add  acknowledgment  and  justification  of  sureties.] 


No.  913. 

Notice  of  Motion  for  the  Discharge  of  Ne  Exeat. 

[Caption.] 

Take  notice  that  this  honorable  court  will  be  moved  before 
[name  judge  and  court],  on ,  the day  of ,  in- 
stant   [or,  next],  at  o'clock   in  the  noon,  on  the 


1394  SUITS    IN    EQUITY, 

part  of  the  defendant,  C.  D.,tliat  the  writ  of  7ie  exeat  repiiblica 

issued  against  him  pursuant  to  the  order  dated  the day 

of ,  1894,  and    the  said  order,  maybe  discharged  with 

costs,  inchiding  the  costs  of  this  application  ;  and  that  the 
plaintiff  may  be  ordered  to  pay  such  costs  to  the  said  defend- 
ant,— If  so;  and  that  the  bond  given  by  the  said  defendant 

to  the  of ,  pursuant  to   the  said  order  and  writ,| 

may  be  delivered  up  to  be  canceled.  And  that  an  inquiry 
may  be  made  what  damages  have  been  sustained  by  the 
said  defendant  by  reason  of  the  said  order  having  been  made. 
And  that  the  plaintiff  may  be  ordered,  piirsuant  to  his  un- 
dertaking, contained  in  the  said  order,  to  pay  to  the  said 
defendant,  within  (one  month)  after  the  date  of  the  master's 
certificate  of  the  result  of  such  inquiry,  what  shall  be  thereby 
certified  in  respect  of  such  damages. 


No.  914. 

Motion  to  Discharge  Writ  of  Ne  Exeat  (i). 

\Caption.'\ 

Now  comes  the  defendant  C.  D.  and  moves  this  honorable 
court : 

First.  That  the  writ  of  ne  exeat  republica  issued  against 

him  pursuant  to  the  order  dated  the  day  of  and 

the  said  order  may  be  discharged  with  costs  including  the 
costs  of  this  application : 

Second.  And  that  the  inquiry  made  by  him  what  damages 
have  been  sustained  by  the  defendant  C.  D.  by  reason  of  the 
said  order  having  been  made,  and  that  the  plaintiff  A.  B. 
may  be  ordered  pursuant  to  his  undertaking  contained  in 
the  said  order,  to  pay  to  the  defendant  C.  D.,  within  one 
month  from  the  date  of  the  Master's  certificate  of  the  result  of 
the  said  inquiry,  what  shall  be  thereby  certified  in  respect  of 
such  damages. 

(1)  As  to  the  discharge  of  a  writ  of  ne  exeat.  See  Bates'  Fed.  Eq., 
Sec.  575;  Daniels'  Chan.  Prac.  (6th  Am.  ed.)  1712;  Foster's  Fed.  Prac, 
Sth  ed.,  Sec.  328. 


NE    EXEAT.  1395 

No.  915. 

Order  that  Writ  of  Ne  Exeat  be  Discharged  on  Defendant 
Giving  Security. 

ICaption.j 

Upon  motion  to  discharge  writ  of  ne  exeat  and  for  leave  to 
go.  out  of  the  jurisdiction  for months,  the  defendant  un- 
dertaking then  to  return,  it  is  ordered  that  upon  the  defend- 
ant C.  D.  giving  security  in  the  amount  of  $ with  two 

sureties,  such  security  to  be  approved  by  the  court,  to  answer 
in  such  sum  as  may  be  found  due  from  him  in  such  cause,  the 
writ  of  ne  exeat  republica  issued  in  this  cause  be  discharged; 

and  it  is  ordered  that  the  order  of  the day  of be 

also  discharged  except  so  much  thereof  as  ordered  that  the 
defencJint  C.  D.  pay  to  the  plaintiff  as  costs  of  that  applica- 
tion. 


No.  9ie. 

Ord^r  that  Writ  of  Ne  Exeat  be  Discharged  with  Inquiry  as 
to  Defendant's  Damages. 

[Caption.'] 

It  is  hereby  ordered  by  the  court  that  the  writ  of  ne  exeat 
republica  issued  against  the  defendant  C.  D.  pursuant  to  the 
order  of  the day  of and  the  said  order  be  respective- 
ly discharged  with  costs  including  the  costs  of  this  appMcation, 
and  that  it  be  referred  to  B.  R.,  Special  Master,  to  inquire  and 
report  what  damages  have  been  sustained  by  the  said  de- 
fendant C.  D.  by  reason  of  the  said  order  dated  the day 

of having  been  made ;  and  that  the  plaintiff  A.  B,  pur- 
suant to  his  undertaking  contained  in  the  said  order  one  month 
after  the  date  of  the  Special  Master's  report  of  the  result  of 
the  said  inquiry,  pay  what  shall  be  certified  in  respect  to  said 
damages  to  the  defendant  C.  D. 


1396  SUITS    IN    EQUITY. 

INJUNCTIONS* 

No.  917. 

Notice  of  Motion  for  Preliminary  Injunction.  (1) 

[Caption.] 
To  R.  Y., 

Counsel  for  Defendant : 

Please  take  notice  that  on  the  day  of ,  1893,  at 

ten  o'clock  a.  m.,  or  as  soon  thereafter  as  counsel  can  be 
heard,  I  will  move  for  a  preliminary  injunction,  as  prayed  in 
the  bill  of  complaint  herein,  based  on  the  decisions  of  the 

courts  in  former  suits  under  letters  patent  No. -,  on  which 

this  suit  is  brought,  and  the  affidavits  of  E.  F.,  G.  H.  and  J.  K., 
and  the  exhibits  referred  to  in  said  affidavits,  a  true  copy  of 
which  is  herewith  served  upon  you.  R.  X., 

Counsel  for  Plaintiff. 

Service  accepted  this day  of ,  1894. 

Y.  &  Y., 
Counsel  for  Defendant. 

(1)  Notice  must  be  served  on  opposing  party  or  his  counsel.     See 
Equity  Rule  72;  38  Stat.  L.  727,  Sec.  17  (the  "Clayton"  Act). 


No.  918. 

Affidavit  of  Service, 

[If  counsel  fail  to  accept  the  service,  the  follozving  affidavit 
of  service  may  he  attached  to  a  copy  of  the  notice  served.] 

State  of  , 

County  of  ,  ss. 

J.  R.  makes  oath,  and  says  that  he  served  notice,  of  which 
the  above  is  a  true  copy,  together  with  a  copy  of  the  bill  of 

*  See  Foster's  Fed.  Prac,  5th  ed.,  Sees.  262  to  300;  Simkins,  A 
Federal  Equity  Suit,  3d  ed.,  pp.  470  to  480;  Judicial  Code,  Sees.  264, 
265,  266,  and  208;  Clayton  Act,  Sees.  17,  18,  19  and  20.  38  Stat.  L.  727, 
which  repeals  Judicial  Code  Sec.  263  expressly,  the  latter  having  been 
a  re-enactment  of  R.  S.  U.  S.,  Sec.  718. 


INJUNCTIONS.  1397 

complaint  and  the  accompanying  affidavits,  hereto  annexed, 
on  C.  D,,  one  of  the  defendants  herein  named  [or,  on  counsel 

for  the  defendant,  as  the  case  may  be],  in  the  city  of ,  on 

the day  of ,  1894.  J.  R. 

Subscribed  and  sworn  to  before  me  this day  of , 

1894.  J.  N., 

[Seal.]  [Official  Title]. 


No.  919. 

Motion  for  a  Preliminary  Injunction. 

[Caption.] 

Now  comes  the  complainant  in  the  above  entitled  suit,  the 
A.  B.  Company,  by  X.  &  X.,  complainant's  solicitors,  and 
moves  this  honorable  court  to  grant  a  writ  of  injunction 
against  said  defendants  and  each  of  them,  their  agents,  attor- 
neys, clerks,  servants  and  employes,  pending  this  suit,  and 
imtil  the  further  order  of  the  court,  conformable  to  the  prayer 
of  the  bill  in  said  case  filed.  X.  &  X., 

Solicitors  for  Complainant. 


No.  920. 

Order  Overruling  Motion. 
[Caption.] 

This  cause  coming  on  to  be  heard  upon  motion  of  plaintiflF 
for  a  preliminray  injunction,  and  affidavits  in  behalf  of  the 
plaintiff,  as  well  as  in  behalf  of  the  defendant,  and  counsel  for 
the  respective  parties  having  been  heard,  and  the  same  having 
been  duly  considered  by  the  court,  it  is  hereby  ordered,  ad- 
judged and  decreed  that  the  said  motion  be  and  the  same  is 
hereby  overruled  at  the  plaintiff's  cost. 


1398  SUITS    IN    EQUITY. 

No.  921. 

Motion  for  Temporary  Injunction  and  for  Restraining  Order 
Without  Notice. 

[Caption.] 

Now  comes  the  above-named  plaintiff  and,  upon  the  verified 
bill  of  complaint  and  the  affidavits  filed  therewith,  moves  the 
court  for  a  temporary  injunction  restraining  the  above-named 
defendants,  Charles  A.  Reynolds,  Frank  R.  Spinning  and  Ar- 
thur A.  Lewis,  constituting  the  public  service  commission  of 
the  state  of  Washington,  and  W.  V.  Tanner,  attorney  general 
of  the  state  of  Washington,  and  each  of  them  during  the  pen- 
dency of  the  above  entitled  action,  from'  enforcing  and  from 
taking  any  steps  to  enforce  the  order  of  the  public  service  com- 
mission of  the  state  of  Washington  made  on  the  24th  day  of 
March,  1915,  in  that  certain  proceeding  entitled  "The  Public 
Service  Commission  of  Washington,  Complainant,  vs.  Puget 
Sound  Traction,  Light  &  Power  Company,  Respondent,  No. 
1832,"  which  order  is  as  follows: 

'Tt  is  therefore  ordered : 

"1.  That  the  defendant  company  continue  the  operation  of 
through  service  on  the  Ballard  Beach  line. 

"2.  That  the  Alki  Point  and  Fauntleroy  Park  lines  be  oper- 
ated through  the  city  of  Seattle  on  First  or  Second  avenues  as 
far  north,  at  least,  as  Virginia  street. 

"3.  That  the  defendant  company  furnish  sufficient  cars  to 
provide  seats  for  substantially  all  persons  using  the  Alki  Point 
and  Fauntleroy  Park  lines. 

"It  is  understood  that  a  substantial  compliance  shall  be  con- 
sidered a  sufficient  compliance  with  this  order  directing  the 
furnishing  of  seats  for  passengers  on  the  Alki  Point  and 
Fauntleroy  Park  lines,  the  company  not  being  required  to  pro- 
vide for  emergency  crowds  that  might  apply  for  seats,  but 
shall  provide  seats  at  all  times  for  the  usual  patronage  of  said 
lines,  and  shall  so  operate  the  said  lines  at  all  times  with  suf- 
ficient cars  to  provide  seats  for  all  passengers  except  on  ex- 
traordinary and  unusual  occasions." 


INJUNCTIONS.  1399 

The  plaintiff  further  moves  the  court  for  a  temporary  re- 
straining order  without  notice  restraining  the  above-named 
defendants  from  doing  any  of  said  acts  until  the  application  of 
the  plaintiff  for  a  temporary  injunction  can  be  heard,  on  the 
ground  that  the  order  of  the  commission  hereinbefore  men- 
tioned will  take  effect  and  be  in  force  before  the  plaintiff  can 
give  notice  of  an  application  for  such  temporary  restraining 
order  and  before  the  application  for  an  injunction  can  be  heard, 
because  said  order  will  take  effect  twenty  days  from  the  24th 
day  of  March,  1915,  and  immediate  and  irreparable  injury, 
loss  and  damage  will  result  to  plaintiff  before  notice  can  be 
served  and  a  hearing  had  thereon.  James  B.  Howe, 

Solicitor  for  Plaintiff. 


No.  922. 

Restraining  Order  Granted  Prior  to  Application  for 
Injunction.  ( 1 ) 
[Caption.] 

Whereas,  in  the  above  cause,  a  motion  for  the  issuance  of  a 
preliminary  writ  of  injunction  has  been  duly  filed,  for  the  hear- 
ing being  fixed  for  one  o'clock  p.  m.  on  the day  of , 

in  the  city   of  ,    in   the   custom-house  building,    district 

court  room ;  and  it  having  been  made  to  appear  that  there 
is  danger  of  irreparable  injury  being  caused  to  complainant, 
before  the  hearing  of  said  application  for  the  writ  of  injunc- 
tion, unless  the  said  defendants  are,  pending  such  hearing, 
restrained  as  herein  set  forth ; 

Now,  therefore,  take  notice  that  you,  J.  C.  and  the  People's 
Telephone  Company,  defendants  herein,  your  agents,  servants 
and  attorneys,  and  each  of  you,  are  hereby  specially  restrained 
and  enjoined  from  making  any  further  double  connection, 
directly  or  indirectly,  with  the  property  of  the  complainants 
by  wires  or  otherwise  until  further  order  of  this  court  in  the 
premises. 

The  question  of  making  the  injunction  operate  against  the 
use  of  connections  already  made  is  reserved  until  the  hearing 


1400  SUITS   IN    EQUITY. 

on  the  application,  when  it  will  be  determined  whether  any 
injunction  should  issue.  The  present  order  operates  against 
making  any  more  connections. 

Done  at  chambers, , p.  m., . 

(1)  See  38  Stat.  L.  IZT.  The  issue  of  a  restraining  order,  which  may 
be  granted  ex  parte,  is  by  the  express  language  of  this  section  made 
dependent  upon  the  existence  of  two  conditions — the  giving  of  notice 
of  a  motion  for  an  injunction,  and  an  apparent  danger  of  irreparable 
injury  from  delay.     Equity  Rule  IZ. 

As  to  the  practice  of  granting  a  restraining  order  pending  an 
application  for  a  preliminary  injunction.  See  Central  Trust  Co.  v. 
Wabash,  etc.,  Ry.  Co.,  25  Fed.  1. 


No.  923. 

Order  Denying  Restraining  Order  and  Setting  Down  for 
Hearing  on  Motion  for  Preliminary  Injunction.  (1) 

\Capt\on.'\ 

This  cause  came  on  this  day  to  be  heard  in  vacation,  before 
Honorable  H.  C.  Niles,  judge  of  the  United  States  district 
court  for  the  Jackson  division  of  the  southern  district  of  the 
state  of  Mississippi,  on  the  application  of  the  complainant  for 
a  temporary  restraining  order  against  the  defendants  as  rail- 
road commissioners  from  the  execution  of  an  order  of  the  said 
railroad  commissioners  of  July  23,  1913,  and  it  appearing  to 
the  court  that  it  is  right  and  proper  that  the  prayer  for  the 
temporary  restraining  order  be  not  granted  as  prayed  for  in 
the  original  bill  of  complaint  herein ; 

It  is  therefore  ordered,  adjudged  and  decreed  that  the  hear- 
ing of  this  cause  on  the  application  for  a  preliminary  injunc- 
tion shall  be  held  at  Birmingham,  Alabama,  on  the  3rd  day  of 
October,  1913,  and  the  judge  of  this  court  hereby  requests  the 
Honorable  David  D.  Shelby,  of  Huntsville,  Alabama,  a  judge 
of  the  circuit  court  of  appeals,  and  W.  I.  Grubb,  of  Birming- 
ham, Alabama,  a  judge  of  the  district  court  within  this  circuit, 
to  sit  with  him  at  the  said  hearing. 

It  is  further  ordered  that  the  clerk  of  this  court  shall  mail  a 
copy  of  this  order  to  the  attorney  general  of  the  state  of  Mis- 


INJUNCTIONS.  1401 

sissippi,  and  a  copy  of  this  order  to  the  governor  of  the  state 
of  Mississippi,  and  to  each  of  the  defendants  named  herein. 

Ordered,  adjudged  and  decreed  in  vacation,  this  the  19th 
day  of  September,  1913.  H.  C.  Niles,  Judge. 

(1)  The  temporary  restraining  order  is  an  injunction  intended  to 
preserve  the  status  quo  until  the  hearing  and  decision  on  the  motion 
for  preliminary  injunction.  Joseph  Dry  Goods  Co.  v.  Hecht,  120  Fed. 
760,  57  C.  C.  A.  64;  Wabash  Ry.  Co.  v.  Hannahan,  121  Fed.  563;  Pack 
V.  Carter,  223  Fed.  638,  139  C.  C.  A.  184. 


No.  924. 

Order  Restraining  Certification  of  Values  to  Comptroller  for 

Taxation.  (1) 

[Caption.] 

The  matter  being  urgent  and  not  admitting  of  notice  of  a 
motion  for  preliminary  injunction  or  such  argument  or  con- 
sideration as  the  importance  of  the  question  demands,  I  allow 
a  restraining  order  commanding  and  restraining  the  defend- 
ants from  certifying  or  delivering  to  the  comptroller  of  the 
state  of  Tennessee  the  assessments  of  complainants'  properties 
mentioned  and  described  and  affirmed  by  them  and  from  cer- 
tifying or  delivering  in  any  way  to  said  comptroller  the  results 
of  their  action  in  respect  to  the  assessments  complained  of  for 
the  years and .  This  order  will  stand  until  an  appli- 
cation can  be  made  to  Judge  X.,  or  any  other  judge  authorized 

to  hold  the  district  court  for  the  district  of ,  for  a 

temporary  injunction  and  granted  or  refused.  But  notice  will 
be  given  and  application  will  be  made  within  ten  days  from 
this  date,  and  if  not  made  within  that  time  this  restraining 
order  will  stand  dissolved;  but  if  so  made  within  said  time, 
this  order  will  continue  until  the  application  thus  made  shall 
be  disposed  of. 

Done  at  chambers  at ,  this day  of . 

(1)     See  note  to  preceding  form. 


1402  SUITS    IN    EQUITY. 

No.  925. 

Order  Restraining  the  Construction  of  a  Telephone  Line  in  a 

Municipality. 

[Caption.] 

On  reading  tlie  bill  of  complaint  herein,  it  is  considered  by 
the  court  and  is  now  so  adjudged  and  ordered  that  the  de- 
fendant, J.  J.,  be  and  he  is  hereby  enjoined  and  restrained  from 

erecting  poles  through  the  streets  of  ,  or  stringing  any 

wires  thereon,  or  taking  any  steps  to  establish  a  telephone 
system  within  the  said  city,  or  endeavoring  to  induce  persons 
therein  who  are  now  or  may  become  patrons  of  the  complain- 
ant, to  become  his  patrons,  or  interfering  in  any  way  with  the 
franchise  of  the  complainant  or  with  its  profitable  use  of  the 
same,  and  from  usurping  to  himself  the  franchise  or  using 

the  streets  and  highways  of  the  city  of for  the  purpose 

of  erecting  poles  or  stringing  wires  or  conducting  over  said 
wires  the  business  of  a  telephone  company,  or  in  any  way  act- 
ing under  the  ordinance  of  the  town  of passed  February 

,  a  copy  of  which  is  attached  to  the  bill  of  complaint,  and 

from  endeavoring  to  assign  or  transfer  the  same  to  any  other 
person  or  persons  or  corporation. 

This  restraining  order  shall  continue  in  force  until  a  motion 
can  be  entered  and  heard  for  a  temporary  injunction  and  until 
the  further  order  of  the  court,  and  this  cause  is  now  set  down 
upon  motion  of  the  complainant  to  grant  a  temporary  injunc- 
tion in  the  terms  of  this  restraining  order  and  in  the  terms  of 

the  prayer  in  the  bill  of  complaint,  for  the day  of , 

at . 

And  the  service  of  a  copy  of  this  order  upon  the  said  J,  J. 
shall  be  sufficient  notice  thereof. 


No.  926. 

Restraining  Order  Against  Municipality  from  Interfering  with 
Construction  of  Telephone  Lines, 

[Caption.] 

Whereas,  in  the  above  cause,  a  motion  for  the  issuance  of  a 
preliminary  writ  of  injunction  has  been  duly  filed  and  the  hear- 


INJUNCTIONS.  1403 

ing  thereof  being  fixed  for  the day  of ,  at  the  United 

States  court  room,  at  o'clock  a.  m.,  at  .     And  it 

having  been  made  to  appear  that  there  is  danger  of  irreparable 
injury  being  caused  to  complainant  before  the  hearing  of  said 
application  for  the  writ  of  injunction  unless  the  said  defend- 
ants are,  pending  such  hearing,  restrained  as  herein  set  forth, 
therefore  complainant's  application  for  such  restraining  order 
is  granted  upon  its  giving  good  security  in  the  sum  of  $500 
for  making  good  to  the  defendants  the  damages  and  costs  that 
may  be  awarded  them  by  reason  of  the  granting  of  this  order ; 

Now,  therefore,  take  notice,  that  you,  the  mayor  and  alder- 
men of  the  city  of ,  defendants  herein,  your  agents,  serv- 
ants, policemen,  marshals  and  attorneys  and  recorder,  and  each 
of  you,  are  hereby  specially  restrained  and  enjoined  from  inter- 
fering in  any  way  or  manner  with  the  construction  and  opera- 
tion of  the  complainant's  lines  or  placing  its  phones  and  poles 
or  the  stringing  of  its  wires  or  the  further  prosecution  or  arrest 
of  the  complainant's  laborers  [naming  them]  :  until  the  hear- 
ing upon  the  said  application  for  a  writ  of  injunction  and  the 
further  order  of  the  court  in  the  premises. 

Done  at  chambers, ,  at o'clock  p.  m. 


No.  927. 

Restraining  Order  Against  a  Strike  Leader. 

[Caption.] 

Whereas,  in  the  above  entitled  cause,  a  motion  for  the  issu- 
ance of  a  preliminary  writ  of  injunction  has  been  duly  filed, 

the  hearing  thereof  being  fixed  for  the day  of ;  and 

it  having  been  made  to  appear  that  there  is  danger  of  irrep- 
arable injury  being  caused  to  complainant  before  the  hearing 
of  said  application  for  a  writ  of  injunction  unless  the  said  de- 
fendant is,  pending  such  hearing,  restrained  as  herein  set  forth, 
therefore  complainant's  application  for  such  restraining  order 
is  granted ; 


1404 


SUITS    IN    EQUITY. 


Now  therefore,  take  notice  that  you,  F.  P.,  defendant  herein, 
are  hereby  restrained  individually  or  in  combination  with 
others  from  inciting,  encouraging,  ordering,  or  in  any  manner 
causing  the  employes  of  the  receiver  herein,  to  leave  his  em- 
ploy, with  intent  to  interfere  with  and  obstruct  the  operation 
of  the  railroad  in  his  charge  for  the  purpose  of  compelling 
said  receiver  to  break  his  contracts  with  the  Pullman  Car  Com- 
pany and  not  to  carry  said  cars  in  his  trains. 

Dated . 


No.  928. 

Order  Modifying  Restraining  Order. 

[Caption.] 

This  cause  coming  on  to  be  heard  upon  the  motion  of  de- 
fendants to  modify  the  temporary  restraining  order  heretofore 
granted  in  the  above  entitled  cause,  and  being  argued  by  coun- 
sel, and  the  court  being  advised  thereon,  doth  find  that  said 
motion  is  in  part  well  taken. 

Wherefore  it  is  ordered  that  the  first  clause  of  said  order 
be  and  the  same  hereby  is  modified  so  as  to  read  as  follows : 

From  in  any  manner  interfering  with  the  persons  in  the  em- 
ploy of  complainant  and  from  in  any  manner  interfering  with 
any  person  who  may  desire  to  enter  or  to  remain  in  the  em- 
ployment of  complainant,  whether  under  the  pretense  of  per- 
suasion or  by  way  of  threats,  violence,  insults,  intimidation  or 
other  means  calculated  or  intended  to  prevent  such  persons 
from  entering  into  or  continuing  in  the  employment  of  com- 
plainant, or  to  influence  or  induce  such  persons  not  to  enter 
into  or  leave  its  employment. 

And  it  is  further  ordered  that  said  temporary  restraining 
order  as  modified  hereby  continue  in  force  until  the  further 
order  of  the  court  in  that  regard. 


INJUNCTIONS.  1405 

No.  929. 

Order  of  Reference  to  Master  of  Motion  for  Injunction  to 

Report  Facts. 
[Caption.] 

This  case  was  heard  at  chambers  in  the  city  of .  on  the 

flay  of ,  before  C.  D..  United  States  district  judge, 

upon  the  bill,  demur  and  answer,  and  upon  plaintiff's  applica- 
tion for  injunction  upon  consideration  of  which  upon  which 
grounds,  which  seem  to  the  court  sufficient,  the  application  for 

injunction  is  continued  until  the  second  Monday  in ,  next, 

being  the  day  of ,  at  the  United  States  court-room 

in  the  city  of .    Pending  said  application  it  is  ordered  that 

the  preparation  of  the  case  for  hearing  proceed  with  all  possible 
speed,  and  to  that  end  it  is  further  ordered  that  J.  N..  because 
of  special  fitness  and  qualification  to  deal  with  matters  of  this 
character,  is  appointed  special  examiner  and  master,  and  is 
directed  to  inquire,  hear  proof  and  report  whether  or  not  the 
present  location  and  construction  of  complainant's  improve- 
ments obstruct  the  streets  of  the  defendant  city  in  their  pri- 
mary use  for  the  purpose  of  travel,  and  if  so,  what  modification 
should  be  made  in  the  restraining  order  permitting  the  city 
to  regulate  the  manner  of  such  construction  and  improvements, 
and  will  also  inquire  upon  proof  and  report  whether  the  mayor 
and  aldermen  of  the  city  of ,  as  a  body,  and  regularly  act- 
ing as  such,  object  to  the  use  of  the  streets  for  the  purposes 
of  constructing  and  operating  a  telephone  within  the  defendant 
city  as  the  complainant  proposes  to  do.  For  the  purpose  of 
such  inquiry,  said  examiner  and  master  will  go  to  the  defend- 
ant city  at  a  time  and  place  fixed  by  him,  of  which  notice  shall 
be  given,  and  will  hear  such  proof  as  may  be  offered,  provided 
that  the  time  fixed  and  within  which  proof  must  be  taken  shall 
be  such  as  to  allow  the  report  on  the  matters  herein  on  or  be- 
fore the  second  Monday  of  September.  Until  the  coming  in 
of  said  report,  and  until  the  further  hearing  of  the  application 
for  injunction,  all  questions  are  reserved,  and  the  restraining 
order  hereto  allowed  is  continued  until  modified  or  until  the 
date  above  set  for  the  hearing  of  the  application  for  injunction. 


1406  SUITS   IN    EQUITY. 

No.  930. 

Report  of  Special  Master  on  Motion  for  Injunction  Being 

Referred. 

[Caption.] 

To  the  Honorable  Judge  of  said  Court : 

The  undersigned  special  master  was  by  an  order  made  on 

the  day  of  ,  directed  "to  inquire,  hear  proof  and 

report  whether  or  not  the  present  location  and  construction 
of  complainant's  improvements  obstruct  the  streets  of  the 
defendant  city  in  their  primary  use  for  the  purpose  of  travel, 
and,  if  so,  what  modification  should  be  made  in  the  restraining 
order  permitting  the  city  to  regulate  the  manner  of  such  con- 
struction and  improvements,  and  will  also  inquire  upon  proof, 
and  report  whether  the  mayor  and  aldermen  of  the  city  of 

,  as  a  body,  and  regularly  acting  as  such,  object  to  the 

use  of  the  streets  for  the  purposes  of  constructing  and  oper- 
ating a  telephone  within  the  defendant  city  as  the  complainant 
proposes  to  do.  For  the  purpose  of  such  inquiry,  said  examiner 
and  master  will  go  to  the  defendant  city  at  a  time  and  place 
fixed  by  him,  of  which  notice  shall  be  given,  and  will  hear  such 
proof  as  may  be  offered,  provided  that  the  time  fixed  and 
within  which  proof  must  be  taken  shall  be  such  as  to  allow 
the  report  on  the  matters  herein  on  or  before  the  second  Mon- 
day of  September,"  and  pursuant  to  said  order  of  reference 
he  arranged  with  the  parties  for  a  date  upon  which  to  take 

proof  at  ,  and  upon  that  date  proceeded  to  said  city  of 

,  and  in  the  presence  of  solicitor  for  complainant  and 

solicitors  for  defendant  proceeded  to  take  proof,  and  said  depo- 
sitions so  taken  were  left  at in  order  that  defendant  might 

prepare  some  exhibits  called  for  in  the  depositions  and  the 
same  was  to  be  forwarded  to  the  undersigned,  but  in  some 
way  the  depositions  have  been  lost  or  misplaced,  except  that 
of  T.  S.,  which  is  herewith  filed.  However,  I  do  not  think  the 
loss  is  material  in  the  view  I  take  of  the  matter  referred  to  me, 
I  find  and  report  that  the  present  construction  or  location  of 
complainant's  improvements  are  in  the  main  as  convenient  as 


INJUNCTIONS.  1407 

could  be  expected.  Defendant  offered  to  introduce  proof  that 
certain  poles  in  the  suburbs,  or  rather  near  the  outskirts  of  the 
city,  were  badly  located  for  the  convenience  of  the  public,  and 
assuming  this  to  be  true  the  complainant  then  and  there  agreed 
that  it  would  change  the  location  of  any  of  its  poles  on  the 
request  and  under  the  direction  of  the  city  authorities,  limiting 
them,  however,  so  that  they  might  not  be  compelled  to  put 
their  lines  on  another  street  or  streets,  and  regarding  this  as 
binding  on  the  complainant  this  branch  of  the  inquiry  was  not 
further  pursued.  The  undersigned  does  not  think  that  com- 
plainant has  intentionally  or  willfully  placed  its  poles  so  as  to 
inconvenience  the  traveling  public. 

I  further  find  and  report  that  the  city  of did  regularly 

employ  counsel  to  contest  the  right  of  complainant  to  build  its 
lines  upon  the  streets  of  said  city.  The  proof  showed  that 
there  had  been  a  contested  election  for  mayor  in  the  city  of 

and  the  matter   is  still   in  litigation,  but  it  is  further 

shown  that  counsel  was  employed  by  the  city  and  board  of 

the  city  of before  the  inauguration  of  the  new  board  of 

mayor  and  aldermen  and  no  contrary  action  having  been  taken, 
there  remains  no  sort  of  doubt  of  the  regularity  and  legality  of 
Messrs.  X.  &  X.  and  Messrs.  Y.  &  Y.  representing  the  board 
of  mayor  and  aldermen  of  the  city  of . 

All  of  which  is  respectfully  submitted  this day  of . 


J.  N., 
Special  Masler  and  Examiner. 


No.  931. 

Order  Refusing  Injunction  and  Vacating  Preliminary  Re- 
straining Order. 

[Capticn.] 

This  cause  came  on  to  be  heard  on  the  application  of  the 
complainant  for  an  injunction  and  upon  the  bill  of  complaint, 
the  affidavits  of  complainant  and  defendants  and  the  argu- 
ments of  counsel.  And  the  court  being  fully  advised  in  the 
premises,  finds  that  the  complainant  is  not  entitled  to  the, relief 


1408  SUITS   IN    EQUITY. 

prayed  for  inits  bill,  and  that  the  preliminary  restraining  order 
heretofore  issued  should  be  vacated. 

It  is  therefore  ordered  and  decreed  that  the  application  of 
complainant  for  an  injunction  herein  be  and  the  same  is  hereby 
refused,  and  the  preliminary  restraining  order  heretofore  is- 
sued herei:,!  be  and  the  same  is  hereby  vacated. 


No.  932. 

Order  Granting  Temporary  Injunction  Against  Postmaster, 
Requiring  Him  to  Transmit  Matter  Through  the  Mails. 

(1) 

[Caption.] 

This  cause  came  duly  on  to  be  heard  this  term  upon  motion 
duly  made  for  a  temporary  injunction  herein  upon  the  bill  of 
complaint  duly  verified  and  filed,  and  upon  the  affidavits  of 
Max  Eastman  and  Merrill  Rogers,  each  duly  verified  and  filed 
herein  on  behalf  of  complainant,  and  the  affidavits  of  the  Hon. 
A.  S.  Burleson  and  the  Hon.  William  H.  Lamar,  on  behalf  of 
the  defendant,  and  Gilbert  E.  Roe,  Esq.,  appearing  as  counsel 
for  the  complainant  in  support  of  said  motion,  and  Earl  B. 
Barnes,  Esq.,  assistant  United  States  district  attorney,  appear- 
ing on  behalf  of  the  defendant,  and  after  due  deliberation,  it  is 

Ordered,  adjudged  and  decreed  that  the  motion  for  the 
temporary  injunction  herein  be  and  the  same  hereby  is  granted, 
and  the  said  defendant,  his  agents,  servants  and  employes,  is 
hereby  restrained  and  enjoined  from  treating  the  August, 
1917,  issue  of  said  magazine  known  as  "The  Masses"  as  non- 
mailable matter,  and  the  said  defendant,  his  agents,  servants 
and  employes  hereby  are  commanded  forthwith  to  transmit 
said  issue  of  said  magazine  known  as  "The  Masses"  through 
the  mails  from  the  New  York  post-office  in  the  usual  way, 
without  further  delay. 

Further  ordered,  that  the  complainant's  bond  herein  (under 
the  Clayton  act)  be  and  hereby  is  fixed  at  two  hundred  and 
fifty  dollars.  A.  B.,  Judge. 

(1)  Equity  Rule  73  provides  for  notice  and  procedure  in  case  of 
application   for  temporary  injunction  or  a  restraining  order. 


INJUNCTIONS.  1409 

Section  264  of  the  Judicial  Code  authorizes  a  temporary  restrain- 
ing order  and  Sec.  265  authorizes  the  granting  of  writs  in  injunction 
by  certain  courts  and  judges.  These  sections  are  general,  whereas 
Sec.  266  is  special  as  below  pointed  out. 

Section  263  has  been  repealed  and  displaced  by  the  Clayton  Act, 
38  Stat.  L.  737,  Sees.  17,  18,  19,  20,  which  deal  with  injunctions  and 
temporary  restraining  orders.  See  5  Fed.  Stat.  Ann.,  2d  ed.,  p.  951 
(notes  under  Sec.  263)  and  6  Fed.  Stat.  Ann.,  2d  ed.,  pp.  139,  140,  141. 


No.  933. 

Order  to  Show  Cause  Why  Temporary  Injunction  Should  Not 
be  Issued  Against  the  Receiver  of  a  Railroad. 

The  complainants,  having  filed  their  verified  bill  of  complaint 
in  this  court  against  the  defendants  above  named,  praying  for 
a  temporary  and  permanent  injunction,  and  in  the  meantime 
for  a  restraining  order,  and  this  court  having  duly  read  and 
considered  said  bill  of  complaint, 

It  is  ordered  that  Jacob  M.  Dickinson  and  Henry  U.  Mudge, 
receivers  of  the  Chicago,  Rock  Island  &  Pacific  Railway  Com- 
pany, and  said  Chicago,  Rock  Island  &  Pacific  Railway  Com- 
pany, show  cause  before  this  court,  in  the  court-room  usually 
occupied  by  the  undersigned  judge,  in  the  federal  building  at 
Chicago,  Illinois,  on  Tuesday,  the  21st  day  of  September,  A. 
D.  1915,  at  10  o'clock  in  the  forenoon  of  that  day,  why  a 
temporary  injunction  should  not  issue  in  accordance  with  the 
prayer  in  said  bill  of  complaint  contained,  to-wit:  that  the 
defendants  and  each  of  them  be  restrained  from  refusing  or 
failing  to  accept,  receive,  transport,  carry  or  deliver  beer  and 
other  fermented  malt  liquors  sold  at  their  places  of  business, 
including  the  city  of  Rock  Island,  Illinois,  by  either  of  the 
plaintiffs  to  persons  residing  in  Iowa  who  have  heretofore  pur- 
chased or  who  may  hereafter  purchase  such  beer  and  fermented 
malt  liquors  for  their  personal  use  and  private  consumption, 
and  who  shall  direct  that  the  same  be  transported  to  their 
respective  places  of  residence  in  Iowa  for  delivery  therein  at 
the  places  where  they  reside,  including  such  shipments  of  beer 
and  fermented  malt  liquors  in  respect  to  which  the  purchasers 
and  consignees  may  authorize  and  direct,  upon  their  written 


1410  SUITS    IN    EQUITY. 

order  in  each  instance,  the  delivery  of  the  same  to  some  specific 
person  or  drayman  for  completion  of  carriage  and  delivery  to 
them  at  their  respective  places  of  residence,  and  that  the  said 
defendant  railway  company  and  its  receivers,  officers,  agents 
and  servants  be  commanded  to  accept,  receive,  transport  and 
deliver  all  of  such  shipments  of  beer  and  malt  liquors  upon 
reasonable  terms  and  lawful  conditions.  Let  a  copy  of  this 
order  and  of  the  bill  of  complaint  be  forthwith  served  upon 
the  receivers  herein  named,  as  well  as  upon  the  defendant 
railway  company,  and  also  that  a  copy  hereof,  together  with  a 
copy  of  the  bill  of  complaint,  be  forthwith  mailed  to  George 
Cosson,  attorney  general  of  the  state  of  Iowa,  at  Des  Moines, 
Iowa.  Enter : 

Carpenter,  Judge. 


No.  934. 

Order  Granting  Temporary  Injunction  Against  Receivers  of 

a  Railroad. 

[Caption.] 

This  cause  coming  on  to  be  heard  on  the  21st  day  of  Sep- 
tember, 1915,  upon  application  on  the  part  of  the  plaintiffs  for 
a  temporary  injunction  pending  the  final  hearing  of  said  cause, 
and  it  appearing  that  a  copy  of  the  order  setting  the  date  of  the 
hearing  for  the  temporary  injunction,  together  with  a  copy  of 
plaintiffs'  bill  of  complaint,  was  duly  mailed  to  George  Cosson, 
attorney  general  of  the  state  of  Iowa,  on  the  15th  of  Septem- 
ber, 1915,  and  Mr.  Frederick  W.  Zollman  and  E.  B.  Cresap, 
appearing  for  the  plaintiffs,  and  M.  L.  Bell  appearing  for  Jacob 
M.  Dickinson  and  Henry  U.  Mudge,  receivers  of  the  Chicago, 
Rock  Island  &  Pacific  Railway  Company,  and  A.  B.  Enoch 
appearing  for  the  defendant  railway  company,  and  C.  A.  Rob- 
bins,  assistant  attorney  general  of  the  state  of  Iowa,  appearing 
on  behalf  of  said  state,  and  after  hearing  argument  and  on  due 
consideration  of  the  same,  it  is,  on  motion  of  the  solicitors  for 
the  plaintiffs, 

Ordered  that  defendants,  Jacob  M.  Dickinson  and  Henry  U. 
Mudge,  receivers  for  the  said  Chicago,  Rock  Island  &  Pacific 


INJUNCTIONS.  1411 

Railway  Company,  be  and  they  hereby  are  restrained  and  en- 
joined, pending  the  final  hearing  of  this  cause,  from  refusing 
or  failing  to  accept,  receive,  transport,  carry  and  deliver  beer 
or  other  fermented  malt  liquors  sold  in  Minnesota,  Wisconsin 
and  Illinois  by  the  plaintiffs,  or  any  of  them,  or  by  other  per- 
sons or  corporations  similarly  situated,  to  persons  residing  in 
Iowa  who  purchase  the  same  for  their  own  lawful  purposes  or 
private  consumption,  whenever  the  bona  fide  consignee  shall, 
in  each  instance,  in  writing  authorize  the  delivery  of  the  same 
to  some  designated  drayman,  or  other  person  for  the  purpose 
of  carrying  the  same  from  defendant's  railway  stations  to  the 
residences  of  such  bona  fide  consignees,  in  which  said  writing 
the  consignee  shall  also  certify  that  said  beer  and  fermented 
malt  liquors  are  for  his  own  lawful  purposes  or  private  con- 
sumption, and  said  receivers  are  hereby  commanded,  pending 
the  final  hearing  of  this  cause,  and  until  the  further  order  of 
the  (^ourt  herein,  to  accept,  receive,  transport  and  deliver  all  of 
such  shipments  upon  said  terms,  provided  each  shipment  of 
such  beer  or  other  fermented  malt  liquors  be,  before  delivery 
to  said  defendants  for  transportation  as  aforesaid,  plainly 
marked  or  branded,  "Intended  for  personal  use  and  private 
consumption." 

Upon  the  filing  of  a  bond  approved  by  the  court  in  the  sum 
of  one  thousand  dollars  ($1,000),  let  writ  of  injunction  issue 
in  accordance  therewith. 

Further  ordered  that  leave  be  and  is  granted  to  the  state  of 
Iowa  to  intervene  in  this  suit  at  any  time  before  final  hearing. 

Enter:  Carpenter, 

Judge. 

Taken  from  Hamm  Brewing  Co.  v.  C,  R.  I.  &  P.  Ry.,  7th 
Cir.,  No.  2369,   Oct.   Term,   1915. 


No.  935. 

Decree  Granting  Preliminary  Injunction  in  Case  of  Trademark, 

Label,  etc. 

[Caption.] 

This  case  having  heretofore  come  on  for  trial  on  the  rule 
nisi  for  preliminary  injunction  and  having  been  heard  and  sub- 
mitted to  the  court,  and  the  law  and  the  evidence  being  in  favor 


1412  SUITS    IN    EQUITY. 

of  the  complainant  and  against  the  defendant,  Louis  E.  Jung : 

It  is  ordered,  adjudged  and  decreed  that  the  rule  nisi  issued 
herein  be  and  the  same  is  hereby  made  absolute  as  to  the  de- 
fendant, Louis  E.  Jung,  and  as  to  the  other  defendants  said 
rule  be  dismissed. 

And  it  is  further  ordered,  adjudged  and  decreed  that  pre- 
liminary injunction  issue  herein  against  the  said  defendant, 
Louis  E.  Jung,  enjoining  the  said  Louis  E.  Jung  and  each  of 
his  attorneys,  officers,  clerks,  servants,  employes,  workmen  and 
representatives,  heirs  and  assigns,  and  all  persons  or  parties 
claiming  through  or  from  or  holding  through  or  under  him, 
under  the  pain  and  penalties  which  may  fall  upon  him  in  case 
of  disobedience,  to  forthwith  desist  from  placing  or  causing 
to  be  placed  upon  liquor  the  said  designation  as  being  distilled 
with  "Carduus  Benedictus  Herb"  or  any  imitation  of  com- 
plainant's trade-marks,  names  and  labels,  and  from  selling  any 
liquor,  other  than  complainant's  liquor,  as  and  for  "Benedic- 
tine" in  any  form  or  by  any  name  or  designation  in  imitation 
thereof,  or  in  any  manner  that  may  simulate  the  liqueur  of 
complainant  or  resemble  complainant's  said  name  and  trade- 
marks and  labels. 

And  it  is  further  ordered,  adjudged  and  decreed  that  said 
Louis  E.  Jung  remain  so  inhibited  and  enjoined  until  the  fur- 
ther order  of  this  court  in  the  premises. 

Dated  at  New  Orleans,  La.,  this  3rd  day  of  May,  1916. 

(Signed)  Rufus  E.  Foster, 

Judge. 
Taken  from  Jung  v.  Societe,  etc.,  242  Fed.  267. 


No.  935a. 

Preliminary  Injunction. 
[Caption.] 
The  President  of  the  United  States  of  America  to  Louis  E. 
Jung,  Greeting : 
Whereas,  it  has  been  represented  to  us  in  our  district  court 
for  the  eastern  district  of  Louisiana,  in  the  fifth  circuit,  on  the 
part  of  Societe  Anonyme  de  la  Distillerie  de  la  Liqueur  Bene- 
dictine de  L'Abbaye  de  Fecamp,  complainant,  that  it  has  lately 


INJUNCTIONS.  1413 

exhibited  its  bill  of  complaint  in  our  said  district  court  for  the 
eastern  district  of  Louisiana  against  you,  Louis  E.  Jung,  to  be 
relieved  touching  matters  therein  complained  of,  in  which  it  is 
stated,  among  other  things,  that  you  are  selling  a  liquor  which 
you  designate  as  being  distilled  with  "Carduus  Benedictus 
Herb"  and  other  herbs,  roots  and  seeds,  and  which  you  sell  as 
such  in  bottles  colored  and  shaped  like  unto  complainant's  bot- 
tles, bearing  labels  and  seals  in  imitation  of  complainant's 
labels,  seals  and  trade-marks,  and  that  your  actings  and  doings 
in  the  premises  are  contrary  to  equity  and  good  conscience; 
and, 

Whereas,  it  has  been  further  represented  to  us  in  our  said 
district  court  that  the  complainant  herein  duly  registered  in  the 
United  States  patent  office  at  Washington,  D.  C,  in  the  years 
1883  and  1914,  its  certain  trade-marks  theretofore  adopted,  and 
that  you,  Louis  E.  Jung,  have  infringed  the  rights  secured  by 
the  aforesaid  registration  by  offering  for  sale  and  selling  to 
others  an  imitatioin  liquor  in  simulation  of  the  liquor  called 
"Benedictine,"  manufactured  and  sold  by  the  complainant, 
which  said  imitation  liquor  you  have  sold  and  offered  for  sale, 
designated  as  being  distilled  with  "Carduus  Benedictus  Herb" 
and  other  herbs,  roots  and  seeds,  in  bottles  colored  and  shaped 
like  unto  complainant's  bottles,  bearing  certain  labels  and  seals 
in  imitation  of  complainant's  labels,  seals  and  trade-marks, 
contrary  to  the  form  of  the  statute  in  such  cases  made  and 
provided ; 

Now,  therefore,  in  consideration  thereof,  and  of  the  particu- 
lar matters  in  said  bills  set  forth,  we  do  strictly  command  and 
enjoin  you,  said  Louis  E.  Jung,  and  each  of  your  attorneys, 
officers,  clerks,  servants,  employes,  workmen  and  representa- 
tives, heirs  or  assigns,  and  all  persons  or  parties  claiming 
through  or  from  or  holding  through  or  under  you,  under  the 
pain  and  penalties  which  may  fall  upon  you  in  case  of  disobedi- 
ence, that  you  forthwith  desist  from  placing  or  causing  to  be 
placed  upon  liquor  the  said  designation  as  being  distilled  with 
"Carduus  Benedictus  Herb"  or  any  imitation  of  complainant's 
trade-marks,  names  and  labels,  and  from  selling  any  liquor, 
other  than  complainant's  liqueur,  as  and  for  "Benedictine"  in 


1414  SUITS   IN    EQUITY. 

any  form  or  by  any  name  or  desig-nation  in  imitation  thereof, 
or  in  any  manner  that  may  simulate  the  liqueur  of  complainant 
or  resemble  complainant's  said  name  and  trade-marks  and 
labels ;  and  that  you  remain  so  inhibited  and  enjoined  until  the 
lurther  order  of  our  said  court  in  the  premises. 

Witness,  the  Honorable  Rufus  E.  Foster,  judge  of  the  dis- 
trict court  of  the  United  States  at  New  Orleans,  in  the  said 
eastern  district  of  Louisiana,  this  3rd  day  of  May,  in  the  year 
of  our  Lord  one  thousand,  nine  hundred  and  sixteen. 

(Signed)  H.  J.  Carter, 

[Seal]  Clerk. 

Taken  from  same  case  as  No.  935. 


No.  936. 

Decree  Denying  Injunction  under  Sherman  Anti-Trust  Act. 

[Caption.] 

This  cause  came  on  to  be  heard  upon  the  bill  of  the  United 
States,  the  demurrer  and  answer  of  the  defendants,  the  affi- 
davits filed  by  plaintiff  and  defendants,  from  all  of  which  the 
court  was  of  opinion  that  the  plaintiff  was  not  entitled  to  the 
injunction  prayed  for ;  that  the  merits  of  the  petition  were  fully 
met  and  denied  by  the  answer,  and  were  not  sustained  by  the 
proof  the  court  being  of  the  opinion  that  the  association  be- 
tween defendants  was  not  a  contract  or  a  combination  in  re- 
straint of  trade,  or  monopoly  of  trade  and  commerce,  under 
the  act  of  Congress  of  July  2,  1890. 

It  was  therefore  ordered,  adjudged  and  decreed  that  the 
petition  filed  against  the  defendants  be  dismissed,  and  that 
petitioner  pay  the  costs  of  this  cause. 


No.  937. 

Order  to  Show  Cause  Why  Injunction  should  not  Issue,  etc. 

[Caption.] 

Upon  reading  the  bill  of  complaint  herein  and  the  affidavits 
of  G.  R.  and  S.  P.,  and  on  motion  of  R.  X.,  solicitor  for  the 

plaintiff,  it  is  hereby  ordered  this  day  of  ,   1894, 

that  the  defendant  show  cause,  if  any  he  has,  before  the  judge 


INJUNCTIONS.  1415 

of  said  court  at ,  in  the  city  of ,  district  of ,  on 

the day  of ,  1894,  at  ten  o'clock  a.  m.,  or  as  soon 

as  counsel  can  be  heard,  why  the  injunction  should  not  issue 
pursuant  to  the  prayer  of  said  bill. 


No.  938. 

Order  Allowing  Injunction  to  Restrain  Collection  of  Taxes. 

[Caption.^ 

On  motion  of  the  plaintiff  by  its  attorneys,  after  due  notice 
given  to  the  defendant,  and  good  cause  being  shown  therefor, 
it  is  ordered  that  on  an  undertaking  being  given  in  the  sum 

of  $ with  sureties  to  the  approval  of  the  clerk  of  this 

court,  a  preliminary  writ  of  injunction  issued  herein,  restrain- 
ing and  enjoining  said  defendant,  R.  S.,  as  treasurer  of  the 
county  of ,  and  state  of ,  and  his  successors  in  of- 
fice, from  collecting  or  attempting  to  collect  from  the  plain- 
tiff or  from  its  individual  shareholders  named  in  said  bill,  by 
distraint  or  otherwise,  any  of  the  taxes  named  in  the  bill,  as 
the  same  stand  charged  upon  the  duplicate  of county,  ex- 
cept that  said  respondent  is  hereby  given  authority  without 
prejudice  to  his  rights  in  the  premises,  to  receive  from  the 

plaintiff  $ on  the  taxes  due  December ,  and  $ due 

June ,  being  the  taxes  by  said  plaintiff's  bill,  admitted  to 

be  justly  due  from  it  and  its  individual  shareholders  to  said 
defendant,  and  that  said  writ  remain  in  force  until  the  fur- 
ther order  of  this  court. 


No.  939. 

Order  Granting  an  Injunction  against  Municipality  Interfer- 
ing with  Telegraph  Poles,  etc. 

[Caption.'] 

On  reading  the  petition  filed  herein ,  also  the  a£ida- 

vits  and  exhibits  filed  herein  by  and  on  behalf  of  the  parties 


1416 


SUITS    TN    EQUITY. 


hereto  respectively,  to  wit,  the  complainant  and  the  defend- 
ants, also  after  arguments  made  and  briefs  filed  on  behalf  of 
complainant  and  defendants  by  their  respective  counsel,  and 
also  upon  due  consideration,  the  court  finds  that  the  com- 
plainant has  proposed  and  still  proposes   itself  to  establish 

and  maintain  in  the  city  of  ,  a  local  district  telegraph 

system,  and  to  operate  and  maintain  the  same  through  its  own 
servants  and  agents,  and  that  said  complainant  has  proposed 
and  still  proposes  to  do  so  through  the  use  of  its  own  wires 
and  other  mechanical  apparatus  necessary  to  be  placed  and 
used  therefore  upon  its  poles  and  within  its  conduits  above 
and  below  the  surface  and  within  the  boundaries  of  the  streets, 

alleys,  highways  and  other  public  grounds  of  the  city  of , 

without  interference  with  the  ordinary  travel  thereon.  It  is 
therefore  ordered  that  the  defendants,  and  each  of  them,  and 
the   officers   and    agents   of  every  character  of  the   city  of 

,  be,  and  they  hereby  are,  enjoined  until  further  order  of 

court,  from  preventing  or  interfering  with  complainant,  or 
any  of  its  officers  or  agents,  replacing,  maintaining  or  using, 
any  of  the  wires  or  other  mechanical  apparatus  or  instru- 
mentalities which  have  heretofore  been  cut  or  otherwise  sev- 
ered or  disconnected  and  removed  by  any  of  defendants,  or 
from  preventing  or  interfering  with  complainant  or  its  of- 
ficers or  agents  placing  and  maintaining  or  using  the  wires 
and  other  mechanical  apparatus  or  instrumentalities  upon 
complainant's  poles  and  within  its  conduits  within  the  bound- 
aries of  any  of  the  streets,  alleys,  highways  or  public 
grounds  of  said  city  of ,  so  far  as  such  wires,  mechan- 
ical apparatus  or  instrumentalities  are  necessary  for  the  full 
and  complete  operation  of  such  district  telegraph  system  with- 
in said  city;  and  said  defendants,  and  each  of  them,  and  the 

officers  and  agents  of  every  character  of  said  city  of  , 

are  further  enjoined  from  cutting,  breaking,  destroying,  mu- 
tilating, or  otherwise  interfering  with,  any  such  wires,  me- 
chanical apparatus  or  instrumentalities,  or  from  severing  or 
disconnecting  any  of  them,  whether  the  same  be  upon  com- 


INJUNCTIONS.  1417 

plainant's  poles,  or  within  its  conduits,  or  elsewhere,  within 
said  city,  and  are  also  further  enjoined  from  obstructing  or 
interfering  with  complainant  itself,  through  its  own  officers 
and  agents,  in  carrying  on  and  conducting  a  district  telegraph 
system  within  said  city. 


No.  940. 

Order  Granting  Injunction  Against  Telephone  Company. 

The  District  Court  of  the  United  States  for  the District 


of 


Equity. 

No.  


A.  B.  Telephone  Company 

vs. 
The  People's  Telephone  Company. . 

Whereas,  in  the  above  entitled  cause  an  application  for  is- 
suance of  preliminary  writ  of  injunction  was  duly  filed  and  set 
down  for  hearing  before  the  Hon.  C.  D.,  judge  of  the  District 

Court  of  the  United  States  for  the Division  of  the 

District  of ,  on  the day  of  .     Notice  of  such 

application  to  be  given  to  the  defendants  People's  Telephone 
Company,  and  J.  C. ;  and  the  parties  now  appearing  by  their 
solicitors,  being  heard  upon  said  application,  and  it  appearing 
that  cause  exists  for  the  granting  of  writ  of  injunction  pend- 
ing final  hearing  of  this  cause  as  prayed  for. 

It  is  therefore  ordered  that  defendants,  People's  Telephone 
Company,  and  J.  C,  their  agents,  servants  and  attorneys,  be 
and  they  are  hereby,  strictly  restrained  and  enjoined  from 
making  any  further  connections  by  wires,  switches,  instru- 
ments or  any  other  devices  of  any  kind  or  character,  directly 
or  indirectly,  or  furnishing  material  for  the  same,  or  advis- 
ing, showing  or  directing  any  other  parties  how  to  make  the 
same  with  the  property  of  the  complainant,  as  complained  of 
in  the  bill  to  which  reference  is  made. 

And  they,  and  each  of  them,  are  hereby  restrained,  in- 
hibited and  enjoined  from  the  further  use  of  the  connections 


1418  SUITS    IN    EQUITY. 

heretofore  made  that  are  now  being  operated  and  maintained 
by  wires  and  material  furnished  by  the  defendant  company, 
and  J.  C,  and  are  inhibited  and  restrained  from  furnishing 
for  use  wires,  instruments  or  other  devices  connected  or  to 
remain  connected,  as  specificially  prayed  for  in  the  bill  of 
complaint,  until  further  orders  of  the  court  in  the  .premises. 


No.  941. 

Order  Granting  an  Injunction  against  Chief  Executive  of  a 
Labor  Union  (i). 

[Caption.'] 

On  application  of  the  complainant,  and  the  filing  of  the 
second  amendment  to  the  bill  of  complaint  and  accompany- 
ing affidavits,  and  its  appearing  to  the  court  that  serious,  irrep- 
arable and  immediate  damage  will  ensue  unless  a  temporary 
restraining  order  is  allowed  as  prayed  for  in  said  amendment 
and  the  motion  filed  therewitli.  It  is  ordered  that  the  defend- 
ant Peter  M.  Arthur  do  forthwith  in  the  manner  customary 
and  usual  according  to  the  prractice  of  the  Brotherhood  of 
Locomotive  Engineers  of  giving  information  to  its  members, 
v-ause  to  be  made  known  and  published  that  the  law,  by-law, 
I'ule  or  regulation  of  said  brotherhood,  requiring  its  members 
to  refuse  to  handle  cars  of  th"e  Toledo,  Ann  Arbor  &  North 
Michigan  Railway  Company  is  not  in  force  or  effect  against 
said  company,  and  that  Jasper  W.  Watson  made  a  defendant 
herein  do  forthwith  cause  to  be  made  known  and  published 
to  the  locomotive  engineers  in  the  employment  of  the  Lake 
Shore  &  Michigan  Southern  Railway  Company,  who  are 
members  of  said  brotherhood  in  the  usual  way  in  which  ac- 
cording to  the  practice  of  said  brotherhood,  information  is 
disseminated  among  the  members  of  said  organization  that 
the  law,  rule,  regulation  or  by-law  of  said  brotherhood  re- 
quiring its  members  to  refuse  to  handle  cars  of  the  Toledo, 


INJUNCTIONS.  1419 

'Ann  Arbor  &  North  Michig-an  Railway  Company  is  not  in 
force  or  effect  against  said  company. 

And  also  that  Peter  M.  Arthur  and  said  Jasper  W.  Watson 
do  forthwith  file  with  the  clerk  of  this  court  for  inspection  by 
the  court  a  copy  of  such  by-law,  rule  or  regulation  so  g-overn- 
ing  the  actions  of  the  members  of  the  said  brotherhood  re- 
quiring its  members  to  refuse  so  to  handle  the  cars  and  freight 
of  said  The  Toledo,  Ann  Arbor  &  North  Michigan  Railway 
Company. 

Ordered,  that  a  temporary  restraining-  order  be  Issued  as 
prayed  for  in  the  said  amendment  to  the  bill,  and  the  motion 
filed  therewith  leave  to  the  defendants  or  any  of  them  to  move 
to  dissolve  the  same,  hearing  to  be  had  on  one  day's  notice  to 
the  complainant's  solicitor. 

Comes  complainant  and  moves  for  an  injunction  pending 
the  hearing  of  the  issues  herein,  and  accordingly  Monday, 
March  27th,  at  10  o'clock  a.  m.,  is  set  for  said  hearing.  No- 
tice of  same  will  be  served  on  all  defendants. 

(1)  This  order  was  entered  in  Toledo,  etc.,  R.  R.  Co.  v.  Penn- 
sylvania Co.,  54  Fed.  730. 


No.  942. 

Order  Enjoining  Striking  Workmen  from  Interfering  with 

Business.  (1) 

The  District  Court  of  the  United  States  for  the District 

of , Division. 

The  A.  B.  Company,  a  corporation,  organized  under  the  laws 

of  the  State  of ,  Complainant, 

vs. 
C.  D.,  E.  F.,  G.  H.  [naming  all  the  defendants  against  whom 

injunction  is  granted],  Defendants. 

Now,  on  this  day  comes  the  complainant,  by  its  counsel, 
and  having  filed  its  bill  of  complaint,  moved  thereon,  and 
upon  the  affidavits  of  R.  T.,  W.  B.,  and  others,  filed  in  this 


1420  SUITS    IN    EQUITY. 

cause,  for  an  injunction  against  the  defendants,  restraining 
them,  and  each  of  them,  as  prayed  for  in  said  bill  of  com- 
plaint. 

And  thereupon  the  principal  defendant,  Shilling,  came  by 
his  counsel,  R.  S.,  and  asking  a  postponement  of  said  motion, 
it  is  ordered  that  said  application  for  postponement  be,  and 
the  same  is  hereby  sustained,  and  the  further  hearing  of  said 

motion  stand  over  to  the day  of ,  A.  D.  ,  but 

in  the  meantime,  and  until  it  is  otherwise  ordered  and  de- 
creed, that  the  said  defendants  named  in  the  bill,  are  and  each  of 
thgn  is  ordered,  commanded  and  enjoined  from  in  any  man- 
ner impeding,  hindering,  obstructing,  or  interfering  with  any 
of  the  business  of  the  complainant  in  the  operation  of  any 
of  its  works  in  the  city  of ,  or  elsewhere,  and  from  en- 
tering upon  the  grounds  or  premises  of  said  company  against 
its  wish  for  the  purpose  of  impeding  in  any  manner  its  busi- 
ness or  interfering  therewith;  and  the  said  defendants  are, 
and  each  of  them  is,  also  ordered,  commanded  and  enjoined 
from  compelling  or  inducing  or  attempting  to  compel  or  in- 
duce, by  use  of  threats  or  intimidation  of  any  sort,  or  fraud  or 
deception  or  violence,  any  person  to  leave  the  employment  of 
said  company,  or  not  to  enter  its  employ  if  desirous  of  doing 
so,  and  from  doing  any  act  or  thing  whatsoever  by  any  of  the 
above  named  means  or  methods  in  furtherance  of  a  purpose 
to  impede  the  business  of  the  said  company,  or  to  impede  any 
of  its  officers  or  employes  in  the  free  and  unhindered  conduct 
and  control  of  said  company's  business;  and  said  defendants 
are,  and  each  of  them  is,  enjoined  from  in  any  manner  what- 
soever ordering;  directing,  aiding,  counselling,  assisting  or 
abetting  any  person,  company  or  organization  to  do,  or  cause 
to  be  done,  any  of  the  things  aforesaid.  And  the  said  indi- 
vidual defendants  above  named  are,  and  each  of  them  is,  or- 
dered, commanded  and  enjoined  to  desist  and  abstain  from 
congregating  at  or  near  the  premises  of  said  company  with 
the  purpose,  and  in  such  manner  as  to  intimidate  or  to  ob- 
struct, surround  or  impede  in  a  manner  calculated  to  intimi- 


INJUNCTIONS.  1421 

date,  or  for  that  purpose,  any  of  the  employes  of  said  com- 
pany, or  persons  seeking  employment  from  it  in  going  to,  re- 
maining at  or  coming  from  the  premises  of  said  company, 
and  said  defendants  are,  and  each  of  them  is,  enjoined  from 
in  any  manner  interfering  with  or  molesting  any  person  or 
persons,  who  may  be  employed  by  or  be  seeking  employment  of 
said  company,  in  the  operation  of  its  said  business,  and  the  said 
individual  defendants  are,  and  each  of  them  is  hereby  enjoined 
and  forbidden,  either  singly  or  in  combination  with  others, 
from  picketing,  guarding,  obstructing,  impeding  or  besetting 
the  streets,  alleys  and  approaches  of  the  premises  of  the  said 
company  with  the  purpose  and  in  such  manner  as  to  intimi- 
date, threaten,  impede,  obstruct,  surround  or  coerce  any  of 
the  employes  of  said  company,  or  persons  seeking  employment 
of  said  company,  and  all  of  said  individual  defendants  are, 
and  each  of  them  is,  enjoined  from  in  any  manner  interfering 
with  such  persons  in  going  to  or  from,  or  in  remaining  at, 
the  works  or  place  of  business  of  said  company,  and  from  in- 
terfering with  any  such  persons  anywhere  because  of  such 
persons  being  in  the  employment  of  complainant,  or  of  their 
seeking  to  be  employed  by  it,  or  because  such  persons  failed 
or  refused  to  join  in  this  present  strike,  ordered  May . 

And  said  defendants  are,  and  each  of  them  is,  enjoined  and 
restrained  from  going,  either  singly  or  collectively,  to  the 
homes,  boarding-houses  or  places  of  habitation  of  employes 
of  complainant,  or  any  of  them  or  of  persons  seeking  its  em- 
ployment, with  the  purpose  of  intimidating  or  coercing  any 
or  all  of  them  to  leave  the  employment  of  the  complainant, 
or  from  entering  complainant's  employment,  and  as  well  from 
intimidating  or  threatening  in  any  manner  the  relatives,  wives 
and  families  of  said  employes  at  their  said  homes  or  else- 
where. 

And  it  is  further  ordered  that  this  order  shall  be  in  force 
and  binding  upon  each  of  the  defendants,  and  all  of  them 
named  in  the  bill,  from  and  after  service  upon  them  of  said 
order  by  delivering  to  them  a  copy,  or  by  reading  the  same  to 


1422  SUITS    IN    EQUITY. 

them,  and  shall  be  binding  upon  defendants  whose  names  are 
alleged  to  be  unknown,  from  and  after  publication  thereof 
by  posting  or  printing,  and  shall  be  binding  upon  all  defend- 
ants, and  all  other  persons  whatsoever,  from  and  after  the 
time  they  severally  have  knowledge  of  the  allowance  of  this 
order. 

Hereof  fail  not  under  the  penalty  of  the  law  thence  en- 
suing. 

Witness  the  Honorable   Melville  W.   Fuller,   chief  justice 

of  the  United  States,  this day  of ,  A.  D. ,  and 

in  the  year  of  the  Independence  of  the  United  States 

of  America.  B.  R., 

Clerk  of  the  District  Court  of  the  United  States 
for  the District  of . 

[Seal.] 

(1)  Arthur  v.  Oakes,  63  Fed.  310,  11  C.  C.  A.  209,  25  L.  R.  A. 
414;  Oxley  Stave  Co.  v.  Coopers'  International  Union,  72  Fed.  695; 
Elder  v.  Whitesides,  72  Fed.  724;  Casey  v.  Cincinnati  Typographical 
Union,  45  Fed.  135,  12  L.  R.  A.  193;  Consolidated  Steel  &  Wire  Co. 
V.  Murray,  80  Fed.  811;  Mackall  v.  Ratchford,  82  Fed.  41. 


No.  943. 

Order  of  Injunction  Extended. 
[Caption.] 

On  motion  of  complainant  and  upon  afifidavits  filed  by  it 
in  this  cause,  the  order  of  injunction  heretofore,  to  wit,  on 
August  29,  1900,  made  by  Judge  Thompson,  is  hereby  ex- 
tended until  September  25,  1900.  when  the  court,  Judge  Clark 
sitting,  will  hear  the  cause  for  further  extension  of  such  order 
of  injunction  and  for  additional  relief  as  prayed  in  the  bill 
and  petition  herein,  and  the  injunction  order  this  day  so 
extended  shall  continue  thereafter  until  further  order  is  made 
herein  by  the  court. 


INJUNCTIONS.  1423 

No.  944. 

Decree   Denying  Motion  to  Vacate  Preliminary  Injunction. 

[Caption.^ 

And  now,  to  wit,  this  13th  day  of  April,  1915,  upon  consid- 
eration of  the  motion  made  by  the  defendants  on  the  7th  day  of 
April,  1915,  to  vacate  the  preliminary  injunction  granted  by 
this  court  on  the  26th  day  of  March,  1915,  in  so  far  as  the 
same  applies  to  the  right  of  the  defendants  or  their  counsel 
to  directly  or  indirectly  disclose  any  and  all  processes,  appara- 
tuses, articles  of  manufacture  or  compositions  of  matter,  or 
any  new  or  useful  improvements  thereon  in  issue  herein, 
claimed  to  be  the  property  of  the  plaintiffs,  to  expert  or  fact 
witnesses  produced  at  or  during  the  taking  of  proofs  of  trial 
including  the  right  to  consult  with  expert  or  fact  witnesses 
regarding  the  same,  either  during  cross-examination  or  in 
preparation  or  presentation  of  the  defendants'  case,  and  after 
argument  of  counsel,  the  said  motion  is  denied  for  the  reasons 
set  forth  in  opinion  filed  the  12th  day  of  April,  1915,  and  it 
is  ordered,  directed  and  decreed  that  the  preliminary  injunc- 
tion granted  on  the  26th  day  of  March,  1915,  shall  stand;  pro- 
vided that  defendants  shall  not  be  deprived  of  the  right  to 
examine  expert  and  fact  witnesses  excepting  as  to  said  proc- 
esses, apparatuses,  articles  of  manufacture,  or  compositions  of 
matter,  or  any  new  or  useful  improvements  thereon  in  issue 
herein  and  claimed  to  be  the  property  of  the  plaintiffs. 

By  the  court:  Dickinson,  J. 


No.  945. 

Decree  Enjoining  the  Carrying  on  of  a  Business  in  Violation' 

of  a  Contract. 

[Caption.] 

This  cause  came  on  to  be  heard  upon  the  bill  of  complamt 
and  the  amended  answer  filed  by  the  defendants  thereto,  and 
the  evidence  and  arguments  of  counsel,  upon  consideration 
whereof  the  court  finds  for  the  complainant  and  against  the 


1424  SUITS.  IN    EQUITY*. 

defendants  and  finds  for  the  complainanti.  andi  against*  Bessie 
M.  Cropper  for  that  she  has  appeared  herein  claiming  to  be 
the  sole  owner  of  the  business  of  the  defendant  Mutual  Rating 
and  Adjustment  Association,  Unincorporated,  and  which  she 
claims  was  and  is  her  trade  name;  the  court  further  finds 
that  the  defendant,  Walter  L.  Cropper,  is  a  co-partner  and 
part  owner  with  Bessie  M.  Cropper,  his  wife,  of  the  defend- 
ant Mutual  Rating  and  Adjustment  Association,  Unincorpo- 
rated, the  true  name  of  which  is  the  Mutual  Rating  and  Ad- 
justing Association ;  the  court  further  finds  that  the  complain- 
ant herein  for  many  years  past,  under  the  name  and  style  of 
National  Rating  League,  has  been  engaged  in  business  known 
to  the  public  as  "Collecting  by  Rating"  in  which  he  used  cer- 
tain forms  and  a  book  known  as  "Collecting  by  Rating"  and 
a  book  known  as  "Red  Guide  and  Credit  Record";  the 
court  finds  that  the  complainant  has  duly  obtained  and  owns 
a  copyright  upon  the  certain  book  in  evidence  entitled  "Col- 
lecting by  Rating"  and  that,  by  long  use  in  his  business  has 
obtained  a  proprietary,  right  in  and  to  the  forms  and  notices 
printed  in  said  book,  and  in  and  to  the  term  or  phrase  "Collect- 
ing by  Rating"  and  in  and  to  the  book  entitled  "Red  Guide 
and  Credit  Record" ;  the  court  further  finds  that  on  the  7th 
day  of  February,  A.  D.  1910,  the  defendant  Walter  L.  Crop- 
per entered  into  a  contract  with  the  complainant,  doing  busi- 
ness under  the  name  and  style  of  National  Rating  League, 
under  and  whereby  the  said  Cropper  agreed :  "I,  W.  L.  Crop- 
per, party  of  the  first  part,  in  consideration  of  the  promises 
hereinafter  made  by  the  National  Rating  League,  party  of 
the  second  part,  hereby  agree  to  devote  all  of  my  time  during 
the  next  five  years,  to  the  business  of  the  National  Rating 
League  as  per  their  instructions,  and  during  said  time  to 
work  at  no  other  employment  or  engage  in  no  other  business 
except  when  the  National  Rating  League  allows  me  to  with- 
draw for  the  purpose  of  entering  a  line  of  business  or  the 
employment  of  any  individual  firm  or  company  neither  of 
which  uses  the  plans,  forms,  or  plan  and  forms,  used  by  the 
National  Rating  League,  in  competition  therewith.     The  Na- 


INJUNCTIONS.  1425 

tional  Rating  League  by  allowing  me  to  engage  at  such  other 
employment  or  business  does  not  thereby  forfeit  its  rights 
under  this  contract.  *  *  *  jhe  party  of  the  second 
part  in  allowing  the  party  of  the  first  part  to  engage  in  any 
line  of  business  not  competing  with  the  National  Rating 
League,  as  in  manner  described  above,  does  not  lose  the  right 
to  services  of  the  party  of  the  first  part."  The  court  finds 
that  a  writ  of  injunction  should  issue  against  the  said  defend- 
ants, and  each  of  them,  from  operating  and  carrying  on  their 
said  business  in  violation  of  said  contract  up  to  and  including 
the  6th  day  of  February,  A.  D.  1915,  at  12  o'clock  midnight 
of  said  day,  being  the  date  of  the  expiration  of  said  contract 
in  evidence  between  the  defendant.  Walter  L.  Cropper,  and 
complainant.  The  court  further  finds  that  a  writ  of  injunc- 
tion should  issue  against  the  said  defendants  and  Bessie  M. 
Cropper  perpetually  enjoining  and  restraining  them  from  in 
any  wise  using,  giving  away  or  distributing  the  said  book 
entitled,  "Collecting  by  Rating,"  and  the  book  entitled,  "Red 
Guide  and  Credit  Record,"  and  from  in  any  wise  using,  giv- 
ing away  and  distributing  the  forms,  notices  and  other  printed 
matter  contained  in  said  book ;  and  the  court  further  finds 
that  by  long  use  the  complainant  has  acquired  a  proprietary 
right  to  use  in  the  transaction  of  his  business  the  term  "Col- 
lecting by  Rating",  as  descriptive  of  his  plan  and  method  of 
business,  and  that  the  said  defendants  and  the  said  Bessie  M. 
Cropper  should  be  enjoined  and  restrained  perpetually  from 
making  use  of  in  any  respect  the  said  term  and  phrase  "Col- 
lecting by   Rating." 

Now,  therefore,  it  is  hereby  ordered,  adjudged  and  decreed, 
that  the  complainant  herein  be  and  is  hereby  awarded  a  writ 
of  injunction  against  the  said  defendants,  Walter  L.  Cropper 
and  Mutual  Rating  Adjustment  Association,  Unincorporated, 
the  true  name  of  which  is  the  Mutual  Rating  and  Adjusting 
Association,  Unincorporated,  and  Bessie  M.  Cropper  as  part 
owner  thereof  along  with  the  defendant,  Walter  L.  Cropper, 
and  that  they  and  each  of  them,  their  agents,  servants  and 
attorneys  and  all  persons  acting  by  or  under  their  authority 


1426  SUITS    IN    EQUITY. 

and  direction,  be  and  hereby  are  enjoined  and  restrained  from 
operating"  and  carrying  on  their  said  business  in  violation  of 
the  terms  and  conditions  of  the  said  contract  dated  February 
7,  1910,  up  to  and  including  the  6th  day  of  February,  1915, 
at  12  o'clock  midnight  of  said  day,  being  the  date  of  the  expi- 
ration of  said  contract ;  and  that  the  said  defendants,  and  each 
of  them,  and  the  said  Bessie  M.  Cropper,  their  agents,  serv- 
ants and  attorneys,  and  all  persons  acting  by  or  under  their 
authority  and  direction,  be  and  they  are  hereby  perpetually 
enjoined  and  restrained  from  in  any  wise  using,  giving  away 
or  distributing  in  any  business  conducted  by  them,  or  either 
of  them,  the  said  book  entitled  "Collecting  by  Rating,"  and 
the  book  entitled  "Red  Guide  and  Credit  Record,"  and  from 
in  any  wise  using,  giving  away  and  distributing  the  forms, 
notices  and  printed  matter  contained  in  said  book,  "Collecting 
by  Rating" ;  and  that  said  defendants,  and  each  of  them,  and 
the  said  Bessie  M.  Cropper,  their  agents,  and  servants,  and 
all  persons  acting  by  or  under  their  authority,  be  and  they 
are  hereby  perpetually  enjoined  and  restrained  from  in  any 
wise  making  use  in  their  business  of  the  term  "Collecting  by 
Rating." 

It  is  further  ordered,  adjudged  and  decreed  that  the  defend- 
ants pay  the  costs  of  this  action  to  be  taxed  by  the  clerk. 

To  all  of  which  foregoing  findings,  order  and  decree,  the 
defendants  and  Bessie  M.  Cropper  except,  which  exceptions 
are  hereby  allowed. 

By  the  Court:  Page  Morris, 

Judge. 
Taken   from   Cuepper  v.   Davis,   156  C.   C.  A.  90. 


No.  946. 

Order  Allowing  Injunction  Against  Use  of  Copyrighted  Forms 

in  Business. 

[Caption.] 

This  cause  coming  on  to  be  heard  upon  the  application  of 
the  complainant  for  a  provisional  or  temporary  order  of 
injunction  herein  and  upon  the  bill  of  complaint  filed  herein 


INJUNCTIONS.  .    1427 

jind  positively  verified,  and  the  exhibits  annexed  thereto,  and 
the  affidavits  of  the  complainant  and  S.  W.  Ivers  in  support 
thereof,  and  upon  the  affidavits  filed  by  the  defendants  against 
ihe  issuance  of  the  preliminary  writ  of  injunction  prayed  for, 
the  complainant  appearing  by  Brown,  Baxter  &  Van  Dusen, 
his  attorneys,  and  the  defendants  appearing  by  Hugh  A. 
Myers,  their  attorney,  and  upon  hearing  had  and  argument 
of  counsel,  the  cause  was  submitted,  whereupon  the  court, 
upon  consideration,  finds  that  a  writ  of  injunction  preliminary 
to  the  final  hearing  is  proper  and  should  be  allowed  as  against 
the  defendant  Walter  L.  Cropper  and  that  prima  facie  the 
complainant  is  entitled  thereto  as  against  the  defendant  Wal- 
ter L.  Cropper,  enjoining  the  said  defendant  from  the  acts 
complained  of  and  threatened  to  be  committed. 

Therefore,  complainant's  application  for  such  preliminary 
and  provisional  order  of  injunction  be  and  hereby  is  granted 
upon  his  giving  bond  to  the  defendant  Walter  L.  Cropper, 
with  good  and  sufficient  surety  or  sureties  to  be  approved 
by  the  clerk  of  the  court  in  the  penal  sum  of  one  thousand 
dollars,  securing  the  said  defendant  against  all  loss  or  dam- 
age which  may  result  from  the  issuance  of  such  order,  if  it 
should  be  finally  determined  that  the  same  was  improperly 
issued,  or  that  may  be  awarded  to  him  by  reason  of  the  grant- 
ing of  said  order. 

Now,  therefore,  it  is  ordered,  that  you,  the  said  Walter  L. 
Cropper,  one  of  the  defendants  herein,  your  agents,  servants 
and  attorneys  and  all  persons  acting  by  or  under  your  author- 
ity or  direction,  be,  and  you  hereby  are,  specially  restrained 
and  enjoined  from  making,  issuing  and  using  in  any  business 
conducted  by  you  forms  of  "Certificate  of  Membership  and 
Contract,"  "Rating  Notice,"  "Listing  Blank,"  "Rating  State- 
ment," and  "Rating  Report,"  similar  in  form  and  style,  mat- 
ter and  plan  to  that  now  used  by  Will  M.  Davis  doing  business 
under  the  name  and  style  of  National  Rating  League  and  from 
soliciting  members  of  the  National  Rating  League,  and  from 
engaging  as  employee  or  otherwise,  in  any  line  of  business 
using  the  same  or  similar  plan  and  forms  to  those  used  by 


1428    •  SUITS   IN    EQUITY. 

said  Will  M.  Davis,  doing  business  under  the  name  and  style 
of  National  Rating  League,  and  in  competition  therewith, 
until  the  further  order  of  this  court. 

It  is  further  ordered  that  a  copy  of  this  order,  certified  under 
the  hand  of  the  clerk  and  seal  of  this  court,  be  served  upon 
the  said  defendant  to  be  restrained  thereby.  A,  B., 

Judge. 

Taken  from  same  case  as  No.  945. 


No.  947. 

Decree  Enjoining  Disclosures  of  Secret  Processes  in  Issue, 
Even  to  Experts. 

[Caption.] 

The  renewed  application  for  a  preliminary,  injunction  under 
the  leave  granted  having  come  on  to  be  heard'and  argued'  by 
counsel,  upon  consideration  thereof  it  is  ordered,  adjudged 
and  decreed  as  follows : 

That  defendants,  Walter  E.  Masland,  Charles  H.  Masland, 
Maurice  H.  Masland,  Charles  W.  Masland,.  Frank  E.  Mas- 
land,  and  J.  Wesley  Masland,  theip  officers,  clerks,  attorneys, 
servants,  agents,  employees,  workmen  and  confederates*  and 
each  of  them,  be  and  hereby  are  enjoined  and  prohibited,  until 
the  further  order  of  the  court,  from  directly  or  indirectly  dis- 
closing any  and  all  processes,  apparatuses,  articles  of  manufac- 
ture, or  compositions  of  matter,  or  any  new  and  useful  im- 
provements thereof,  in  issue  herein  claimed  to  be  the  property 
of  the  plaintiffs,  including  the  disclosure  to  experts  or  to  fact 
witnesses  produced  at  or  during  the  taking  of  the  proofs  of 
trial,  but  excepting  therefrom  defendants'  solicitors  or  coun- 
sel and  subject  to  leave  granted  defendants  to  move  to  vacate 
said  injunction  if  occasion  to  consult  expert  witnesses  or 
otherwise  arises. 

It  is  further  ordered  that  sufficient  time  be  given  defendants 
in  which  to  present  reply  proofs  to  the  proofs  submitted  by 
plaintiffs. 

It  is  further  ordered  that  the  protection  to  be  thrown  around 
the  taking  of  proofs  and  who  shall  be  permitted  to  attend 


INJUNCTIONS.  1429 

thereat  may  be  agreed  upon  by  counsel  or  determined  by  the 
court  at  the  time  such  proofs  are  taken.     Plaintiffs  to  file  in- 
junction bond  in  the  sum  of  one  thousand  dollars  ($1,000.00). 
By  the  Court: 

Dickinson,  J. 

Taken  from  Du  Pont  Co.  v.   Masland,  244.  U.  S.  100. 


No.  948. 

Application  for  Injunction  Against  Enforcing  a  Judgment  of 
a  State  Court.(l) 
[Caption.] 

Now  comes  the  defendant,  the  Black  Panther  Oil"  and  Gas* 
Company,  and  complaining  of  one  George  M.  Swift,  states: 

First.  In  the  order  made  on  April  17,  1914,  by  this  court 
in  this  action  appointing  a  receiver,  the  said'  receiver  was 
directed  to  enter  into  a  contract  with  this  defendant  for  the 
development  of  the  lands  described  therein,  to-wit :  the  north- 
west quarter  (NW34)  of  section  nine  (9),  township  eighteen 
(18)  north,  range  seven  (7)  east  in  Creek  county,  Oklahoma, 
the  said  receiver  was  di-rected  to  release  to  this  defndant  what 
is  known  as  the  working  interest  in  the  oil  and  gas  produced 
therefrom  free  from  an.y  claim  of  any  party  to  this  action, 
and  in  the  contract  thereafter  entered  into  between  the  receiver 
and  this  defendant,  the  said  receiver  covenanted  and  agreed 
that  he  would  release  to  this  defendant  free  from  any  claim 
of  any  party  to  this  action  all  the  oil  and  gas  produced  from 
said  premises,  over  and  above  the  royalty  of  one-fourth  inter- 
est directed  to  be  paid  to  the  receiver.  This  defendant  has 
faithfully  complied  with  all  the  obligations  it  assumed  with 
the  receiver  in  the  making  of  said  contract. 

Second.  After  the  appointment  of  the  receiver  herein,  and 
on  the  23rd  day  of  November.  1913,  Saber  Jackson,  by  order 
of  this  court,  was  made  a  party  defendant  herein  and  in  his 
answer  on  said  date  filed,  he  expressly  ratified  all  the  orders, 
judgments,  and  proceedings  that  have  heretofore  been  made 
in  this  cause.  The  said  answer  of  the  said  Saber  Jackson  was 
filed  herein  prior  to  the  time  the  said  George  M.  Swift  claims 


1430  SUITS   IN    EQUITY. 

to  have  acquired  any  interest  in  or  to  any  oil  or  gas  produced 
from  said  premises,  on  in  any  lease  upon  said  premises  or 
any  other  lease  of  whatsoever  character  in  or  to  said  premises. 

Third.  Thereafter,  on  the  27th  day  of  February,  1915,  the 
said  George  M,  Swift  filed  his  petition  in  the  district  court 
within  and  for  Creek  county,  Oklahoma,  against  this  defend- 
ant wherein  he  claimed  that  on  the  13th  day  of  November, 
1913,  the  said  Saber  Jacksoa  had  executed  an  oil  lease  upon 
the  lands  in  controversy  to  one  J.  Coody  Johnson  reserving 
to  the  said  Saber  Jackson  a  royalty  of  all  the  oil  produced 
upon  the  said  premises  bv  the  said  J.  Coody  Johnson  or  his 
assigns.  It  is  further  alleged  in  said  petition  that  through 
several  assignments  said  lease  had  become  the  property  of  this 
defendant.  In  said  petition  it  was  shown  that  the  purpose  of 
said  suit  was  to  procure  Judgment  for  one-eighth  of  all  the 
oil  theretofore  produced  or  that  might  be  thereafter  produced 
upon  said  nremises.  A  copy  of  said  petition  is  hereto  attached 
as  a  part  hereof  and  marked  Exhibit  "A"  of  this  application. 

Fourth.  In  said  cause  this  defendant  filed  its  answer  in 
which  it  advised  said  court  that  this  court  had  already  taken 
possession  of  said  property  through  its  receiver :  that  the  said 
Saber  Jackson  had  become  a  party  to  this  action  expressly 
ratifying  the.  action  of  this  court  in  appointing  a  receiver,  and 
suggesting  to  said  court  that  it  ought  not  to  entertain  juris- 
diction of  said  cause.  A  true  and  complete  copy  of  this  defen- 
dant's answer,  with  amendment  thereto,  is  attached  hereto 
as  a  part  hereof  and  marked  Exhibit  "B."  This  defendant 
further  states  that,  notwithstanding  its  said  plea,  said  court 
entertained  jurisdiction  of  said  cause  and  thereafter  and  on 
the  30th  day  of  October,  1915,  rendered  judgment  wherein 
it  decreed  that  the  said  George  M.  Swift  was  entitled  to  a 
one-eighth  of  all  the  oil  which  this  defendant  had  produced 
from  said  land  under  and  by  virtue  of  its  contract  with  said 
receiver.  A  copy  of  said  judgment  and  decree  is  attached 
hereto  as  a  part  hereof  and  marked  Exhibit  "C."  Thereafter, 
on  the  5th  day  of  February,  1916,  the  said  court  rendered  its 
further  judgment  and  decree  wherein   it  held  that  the  said 


INJUNCTIONS.  1431 

George  M.  Swift  was  •entitled  to  one-eighth  of  all  the  oil  there- 
tofore produced  or  which  should  thereafter  be  produced  by 
the  defendant  from  the  said  premises  under  its  said  contract 
with  the  receiver  herein.  A  copy  of  said  final  decree  is  hereto 
attached  as  a  part  hereof  and  marked  Exhibit  "D."  Motion 
for  a  new  trial  in  said  cause  was  duly  filed  and  by  the  court 
overruled  on  March  4,  1916.  and  this  defendant  was  by  order 
of  said  court,  required  to  give  bond  in  the  sum  of  two  hundred 
fifty  thousand  ($250,000.00)  dollars  to  supersede  said  judg- 
ment. A  copy  of  the  order  of  said  court  is  attached  hereto 
as  a  part  hereof  and  marked  Exhibit  "E"  of  this  application. 

Fifth.  This  defendant  states  that  it  owns  no  property  of  any 
character  whatsoever,  except  the  interest  it  has  in  the  lease 
made  herein  with  the  receiver  of  this  court;  that  it  tried  but 
was  unable  to  give  said  supersedeas  bond,  and  unless  this 
court  shall  protect  the  defendant,  the  said  Goerge  M.  Swift 
will,  through  the  process  of  the  said  state  court  not  only 
harass  and  annoy  the  defendant,  so  as  to  make  it  impossible 
for  it  to  comply  with  its  contract  with  the  receiver,  but  will, 
in  effect,  nullify  the  order  of  this  court  appointing  said 
receiver  wherein  it  released  to  this  defendant  the  working 
interest  in  said  premises  free  from  the  claims  of  all  parties 
to  this  suit  and  will  nullify  and  make  impossible  the  carrying 
out  and  performance  of  the  covenants  of  the  receiver  wherein 
the  said  receiver  agreed  to  release  to  this  defendant  the  work- 
ing interest  of  said  oil  and  gas  free  from  the  claims  of  all 
parties  of  this  action.  This  defendant  further  states  that  the 
said  state  court  will,  through  its  process,  assist  the  said  George 
M.  Swift  in  thus  nullifying  the  aforesaid  order  and  decree  of 
this  court  and  the  aforesaid  contract  of  the  receiver  herein. 

Sixth.  This  defendant  further  avers  that  on  the  28th  day  of 
March,  1916,  the  said  George  M.  Swift  procured  writs  of 
garnishment  to  issue  out  of  said  state  court,  wherein  it  sum- 
moned the  Security  State  Bank  of  Wewoka,  Oklahoma;  the 
Security  National  Bank  of  Oklahoma  City,  Oklahoma,  and 
Howard  Weber,  of  Bartlesville,  Oklahoma,  as  garnishees,  and 
b)i    reason   of  said  garnishment   writs,   the   said   George   M. 


1432  SUITS    IN    EQUITY. 

Swift  has  induced  the  said  banks  and  the  said  Howard  Weber 
to  withhold  from  this  defendant  any  and  all  monies  owing  it, 
an  any  and  all  oil  produced  from  said  premises  which  this 
defendant  is  entitled  to  receive,  under  the  aforesaid  order  of 
this  court,  a  copy  of  which  said  garnishment  summons  is 
hereto  attached,  made  a  part  hereof,  and  marked  Exhibit  "F." 
Seventh.  This  defendant  states  that  on  the  29th  day  of 
March,  1916,  the  said  George  M.  Swift  procured  from  the 
judge  of  the  said  state  court,  to-wit:  the  Honorable  Earnest 
E.  Hughes,  a  writ  of  injunction,  which  by  its  terms  prevents 
this  defendant  paying  out  any  monies  that  may  come  into 
its  hands  or  under  its  control,  and  from  checking  out  any 
funds  that  may  be  placed  in  any  bank  to  its  credit  or  for  its 
benefit,  and  from  paying  out  any  money  that  it  may  hereafter 
receive  from  any  oil  produced  upon  the  aforesaid  premises, 
a  true  and  complete  copy  of  which  said  restraining  or  injunc- 
tional  order  is  hereto  attached,  marked  Exhibit  "G"  and  made 
a  part  hereof. 

Eighth.  Now  this  defendant  states  that  said  writs  of  gar- 
nishment and  said  restraining  order  were  all  procured  in  con- 
tempt of  the  order  of  this  court :  that  they  were  purposely  pro- 
cured for  the  purpose  of  infringing  upon  the  jurisdiction  of 
this  court  and  for  the  further  purpose  of  nullifying  the  afore- 
said order  of  this  court  and  the  aforesaid  contract  of  this  defen- 
dant with  the  said  receiver,  and  for  the  purpose  of  making 
it  impossible  for  this  defendant  to  carry  out  its  contract  with 
the  said  receiver,  and  that,  unless  this  court  shall  restrain  the 
said  Swift  from  further  attempting  to  execute  said  judgment 
the  proceedings  of  the  said  Swift  in  the  said  state  district 
court  will  make  it  impossible  for  this  defendant  to  carry  out 
its  contract  with  the  said  receiver  and  will  nullify  and  destroy 
the  aforesaid  order  of  this  court  and  the  aforesaid  guaranty 
of  the  receiver. 

Ninth.  This  defendant  further  represents  and  shows  to  this 
honorable  court  that  it  has  been  informed  and  verily  believes 
and  therefore  alleges  that  the  said  George  M.  Swift,  as  plain- 


INJUNCTIONS.  1433 

tiff  and  judgment  creditor  in  said  state  district  court  action, 
has  caused  an  execution  to  be  issued  by  the  clerk  of  said  court 
and  levied  by  the  sheriff  of  said  Creek  county,  Oklahoma, 
upon  the  property  of  this  defendant  located  in  said  county, 
consisting  entirely  of  its  interest  in  and  to  said  above  described 
tract  of  land,  acquired  under  the  said  lease  contract  with  the 
receiver  of  this  court,  and  all  the  equipment  and  improve- 
ments placed  in  and  upon  said  land,  in  performance  of  its 
obligation  under  and  by  virtue  of  the  terms  of  said  lease ;  also 
that  the  said  sheriff  of  Creek  county  has  advertised  all  of  said 
property  for  sale  on  the  3rd  day  of  May,  1916,  at  the  court- 
house in  the  city  of  Sapulpa,  said  county  and  state,  and  will 
on  said  date,  unless  restrained  and  prevented  by  the  order 
of  this  court,  sell  said  property  to  the  highest  bidder,  thereby 
making  it  utterly  impossible  for  this  defendant  further  to 
comply  with  and  carry  out  the  provisions  of  said  contract  with 
the  receiver  of  this  court. 

Defendant  further  alleges  that  the  amount  of  damages 
which  will  accrue  to  it  by  the  various  proceedings  to  enforce 
said  judgment,  restored  to  by  the  said  George  M.  Swift,  in 
said  state  district  court,  is  incapable  of  exact  or  approximate 
estimation  and  that  this  defendant  has  no  other  adequate 
remedy  than  the  injunction  process  of  this  court;  also  that 
the  said  Swift  is  insolvent. 

Wherefore,  this  defendant  prays  that  the  aforesaid  George 
M.  Swift,  his  agents,  attorneys,  and  other  employes,  be  im- 
mediately restrained  from  further  enforcing  or  attempting  to 
enforce  said  judgment,  either  directly  or  indirectly,  against 
the  said  three-fourths  working  interest  of  this  defendant  in 
and  to  the  oil  and  gas  produced  on  and  from  said  above  de- 
scribed premises,  until  a  hearing  of  this  application  can  be 
had  and  that  upon  such  hearing  a  further  order  be  passed 
enjoining  the  said  George  M.  Swift,  his  agents,  attorneys, 
servants,  and  employes,  from  further  enforcing  or  attempting 
to  enforce  said  judgment  during  the  continuance  of  said  receiv- 
ership, and  until  the  final  determination  of  this  action.  This 
defendant  further  prays  for  such  other  and  general  relief  as 


1434  SUITS    IN    EQUITY. 

will  fully  protect  it  in  the  enjoyment  of  the  guarantees  con- 
tained in  its  said  contract  with  the  receiver  of  this  court. 
(Signed)      Stuart  &  Cruce, 

Keaton,  Wells  &  Johnston, 
Attorneys  for  the  defendant, 
Black    Panther    Oil    &    Gas 
Company. 

(1)  This  case  is  reported  in  244  Fed.  20,  156  C.  C.  A.  448,  and  the 
opinion  contains  a  comprehensive  summary  of  the  cases  dealing  with 
this  question.  The  chief  question  at  issue  in  such  cases  is,  which 
court  lawfully  obtained  jurisdiction  first? 

If  the  federal  court,  as  here,  then  it  may  enjoin  further  proceeding 
in  the  state  court,  or  a  judgment  of  the  state  court. 

Judicial  Code,  Sec.  265,  prohibits  injunction  issuing  out  of  a  federal 
court  to  stay  proceedings  in  a  state  court  except  in  bankruptcy  pro- 
ceedings where  authorized  by  law. 

Under  this  section  a  federal  court  is  not  precluded  from  granting 
an  injunction  restraining  the  enforcement  of  the  judgment  of  a 
state  court  where  necessary  to  preserve  the  rights  of  parties  in  a  suit 
properly  before  it.     Southern  Ry.  Co.  v.  Simon,  153  Fed.  234. 


No.  949. 

Decree  Enjoining  State  Court  Judgment. 
[Caption.] 

On  this  22d  day  of  April,  1916.  came  on  for  further  hear- 
ing the  application  for  an  injunction  filed  herein  by  defendant 
Black  Panther  Oil  and  Gas  Company  seeking  to  restrain 
George  M.  Swift,  his  agents,  attorneys  and  employees,  and 
the  appHcant,  Black  Panther  Oil  and  Gas  Company  and  the 
respondent,  said  George  M.  Swift,  being  present  by  counsel, 
the  court,  after  hearing  the  testimony,  and  duly  considering 
the  same,  finds  that  the  law  and  the  facts  are  in  favor  of  the 
petitioner  and  the  injunction  prayed  for  herein  should  be 
granted. 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court 
that  the  respondent,  George  M.  Swift,  his  attorneys,  em- 
ployees, servants  and  agents  be  enjoined  from  further  attempt- 
ing, either  by  execution  or  by  writs  of  garnishment  or  other 


INJUNCTIONS.  1435 

process  to  enforce  a  certain  judgment  heretofore  recovered  in 
the  district  court  of  Creek  county,  Oklahoma,  wherein  the  said 
George  M.  Swift  is  plaintiff  and  the  said  Black  Panther  Oil 
and  Gas  Company  is  defendant,  insofar  as  said  writs  of  gar- 
nishment or  executions  seek  to  subject  to  the  payment  of  said 
judgment  in  the  said  Creek  county  district  court  the  three- 
fourths  working  interest,  or  the  proceeds  of  the  same,  here- 
tofore derived  or  that  hereafter  may  be  derived,  by  the  said 
Black  Panther  Oil  and  Gas  Company  in  the  operation  for  oil 
and  gas  on  the  Northwest  Quarter  (N\V34)  of  section  nine 
(9),  township  eighteen  (18)  north,  range  seven  (7)  east,  in 
Creek  county,  Oklahoma;  and  said  George  M.  Swift,  his 
agents,  servants  and  employees  are  further  enjoined  from 
attempting  to  enforce,  or  from  maintaining,  writs  of  garnish- 
ment heretofore  sued  out  in  said  cause  pending  in  said  district 
court  of  Creek  county.  Oklahoma,  against  the  Security  State 
Bank  of  Wewoka,  Oklahoma ;  the  Security  National  Bank  of 
Oklahoma  City,  Oklahoma,  and  Howard  Weber,  of  Bartles- 
ville,  Oklahoma ;  and  the  said  George  M.  Swift,  his  agents, 
servants  and  employees  are  further  enjoined  from  further 
maintaining  any  writ  of  injunction  heretofore  issued  in  said 
cause  pending  in  said  district  court  of  Creek  county,  Okla- 
homa, whch  attempts  to  restrain  the  said  Black  Panther  Oil 
and  Gas  Company  from  checking  out,  or  using  any  funds 
placed  to  its  credit  in  any  bank  or  banks  in  the  State  of 
Oklahoma;  and  the  said  George  M.  Swift,  his  agents,  em- 
ployees and  servants  are  further  restrained  .and  enjoined 
from,  in  any  manner,  seeking  to  subject  said  three-fourths 
working  interest  in  the  oil  and  gas  produced  from  said  prem- 
ises, or  the  proceeds  or  moneys  arising  from  the  sale  of  said 
oil  and  gas,  either  by  execution,  attachment,  garnishment, 
injunction  or  other  process,  to  the  payment  of  said  judgment 
procured  in  the  said  District  Court  of  Creek  county,  Okla- 
homa, and  said  George  M.  Swift  is  commanded  to  dismiss 
said  writs  of  garnishment  and  said  restraining  order,  and  to 
recall  any  execution  issued  out  of  the  said  District  Court  of 
Creek  county,  Oklahoma. 


1436  SUITS    IN    EQUITY. 

This  decree  and  injunction  to  be  and  remain  in  full  force 
and  effect  until  the  final  discharge  of  the  receivership  herein. 

And  thereupon,  in  open  court,  the  respondent,  George  M. 
Swift,  by  his  attorneys,  orally  moved  the  court  to  require 
the  Black  Pantlier  Oil  &  Gas  Company  to  execute  a  bond 
conditioned  to  pay  all  damages  by  reason  of  the  injunction 
herein  as  a  condition  to  granting  this  injunction,  which  mo- 
tion and  request  is  overruled  and  refused. 

It  is  further  ordered,  that  the  said  Black  Panther  Oil  & 
Gas  Company  recover  of  and  from  the  said  defendant,  George 
M.  Swift,  all  its  costs  in  this  behalf  expended,  and  the  respon- 
dent, George  M.  Swift,  excepts  to  the  order  and  decree  herein. 

Ralph  E.  Campbell, 

Judge. 
Taken  from  U.  S.  v.  Wildcat,  244  U.  S.  111. 


No.  950. 

Order  Enjoining  Prosecution  of  a  Pending  Suit  at  Law  in  the 
Same  Federal  Court  and  forbidding  the  Bringing  of  Suits 
in  a  State  Court,  and  to  Strike  Out.(l) 

[Caption.] 

This  cause  came  on  to  be  heard  at  the  November  term  of 
this  court  and  was  argued  by  counsel  and  thereupon,  upon 
consideration  thereof,  it  was 

Ordered,  adjudged  and  decreed  that  the  defendant  herein, 
The  Shubert  Theatrical  Company  of  New  Jersey,  be  and  it 
is  hereby  enjoined  from  taking  any  further  steps  in  a  cer- 
tain action  at  law  pending  in  this  court  in  which  the  said 
Shubert  Theatrical  Company  of  New  Jersey  is  plaintiff  and 
the  plaintiff  herein,  The  Sherman  National  Bank,  is  defend- 
ant, until  further  order  of  this  court ;  and  it  is  further 

Ordered,  adjudged  and  decreed  that  the  said  defend- 
ant herein.  The  Shubert  Theatrical  Company  of  New  Jer- 
sey, is  enjoined  from  commencing  any  other  action  against 
the  plaintiff  herein.  The  Sherman  National  Bank,  in  any 
court  upon  the  cause  of  action  stated  in  the  said  action  here- 
inbefore mentioned.     And  it  is  further 


INJUNCTIONS.  1437 

Ordered,  adjudged  and  decreed,  that  the  answer  herein 
of  The  Shubert  Theatrical  Company  of  New  Jersey  be 
amended  as  follows :  First,  that  the  defence  therein  denomi- 
nated "First  Defence"  be  and  the  same  hereby  is  stricken  out 
and  the  defendant  directed  to  file  a  further  and  better  state- 
ment of  the  nature  of  the  defence  therein  contained  and  fur- 
ther and  better  particulars  of  the  matters  therein  stated,  within 
twenty  days  after  the  service  upon  them  of  a  copy  of  this 
order.     And  it  is  further 

Ordered,  adjudged  and  decreed  that  the  defences  therein 
denominated  "Second  Defence"  and  "Third  Defence"  be  and 
the  same  hereby  are  stricken  out  without  leave  to' re-plead. 

Learned  Hand, 

D.  J. 

(1)  Judicial  Code,  Sec.  265  does  not  prevent  a  federal  court  from 
protecting  its  own  jurisdiction,  and  it  may  therefore  enjoin  prosecu- 
tion in  a  state  court  which  would  render  its  own  decree  nugatory. 
Julian  V.  Central  Trust  Co.,  193  U.  S.  93,  48  L.  Ed.  629;  St.  Louis,  etc., 
Ry.  Co.  V.  Bellamy,  211  Fed.  172;  Jackson  v.  Parkersburg,  etc.,  Ry.  Co., 
233  Fed.  784. 


No.  951. 

Order  for  Preliminary  Injunction  in  a  Patent  Suit.(l) 

[Caption.] 

This  cause  having  come  on  to  be  heard  on  motion  of 
plaintiff  for  a  preliminary  injunction,  and  on  reading  and 
filing  notices  of  motion  for  an  injunction  herein  and  proof  of 
service  thereof,  and  the  affidavits  on  behalf  of  the  plaintiff 
annexed  thereto,  and  on  reading  and  filing  affidavits  on  behalf 
of  the  defendant,  and  counsel  for  defendant  as  well  as  for 
the  plaintiff  have  been  heard,  and  the  same  liaving  been  duly 
considered  by  the  court,  and  it  appearing  that  letters  patent 

of  the  United  States  No.  .  were  issued  in  due  form  of 

law  on  the  day  of ,  for  an  improvement  in  hobby- 
horses, to  A.  B.,  and  that  the  said  defendant,  C.  D..  has 
infringed  on  the  rights  secured  by  the  aforesaid  letters  pat- 
ent by  making  and   selling  to  others  hobby-horses  embody- 


1438  SUITS   IN    EQUITY. 

ing  the  invention  set  forth  in  said  patent  contrary  -to  form 

of  the  statute  in  such  case  made  and  provided ; 

Now,  therefore,  it  is  hereby  ordered,  adjudged,  and  decreed 

that  a  preliminary  injunction  be  issued  pursuant  to  the  prayer 

herein,    strictly   commanding    and   enjoining    the   defendant, 

C.  D.,  his  clerks,  agents,  servants,  workmen,  and  attorneys, 

under  the  pains  and  penalties  which  may  fall  upon  them,  and 

each  of  them,  in  case  of  disobedience,  that  they  forthwith,  and 

until  the»  further  order,  judgment,  and  decree  of  this  court, 

desist  from  making,  using,  and  selling  any  hobby-horses  as 

described  and  claimed  in  the  said  letters  patent. 

(1)  As  to  injunction  generally.  See  Foster's  Fed.  Prac,  Sth  ed., 
Sees.  262  to  300;  Beach's  Modern  Eq.  Prac,  Sees.  753  et  seq.  When  pre- 
liminary injunctions  are  grantable  in  patent  cases.  See  Robinson  on 
patents,  Sees.  1169  et  seq.,  and  cases  cited  in  notes. 


No.  952. 

Preliminary  Injunction  to  Restrain  the  Infringement  of  a 

Patent. 

[Caption.] 
The  President  of  the  United  States  to  C.  D..  and  his  clerks, 
agents,  attorneys,  servants,  and  workmen,  Greeting: 

Whereas,  it  has  been  represented  to  us  in  the  circuit  court 

of  the  United  States  for  the district  of ,  that  letters 

patent  No.  were  issued  in  due  form  of  law  on  the  

day  of  ,  for  an  improvement  in  hobby-horses  to  A.  B., 

and  that  you,  the  said  C.  D.,  have  infringed  the  rights  se- 
cured by  the  aforesaid  letters  patent  by  making  and  selling 
to  others  hobby-horses  embodying  the  invention  set  forth 
and  claimed  in  the  said  letters  patent,  contrary  to  the  form 
of  the  statute  in  .such  cases  made  and  provided ; 

Now,  therefore,  you,  the  said  C.  D.,  your  clerks,  agents, 
attorneys,  servants,  and  workmen  are  strictly  commanded  and 
enjoined  under  the  pains  and  penalties  which  may  fall  upon 
you  and  each  of  you,  in  case  of  disobedience,  that  you  forth- 
with, and  until  the  further  order,  judgment,  and  decree  of 
this  court,  desist  from  making  and  selling  any  hobby-horses 


INJUNCTIONS.  1439 

embodying  the  invention  of  said  letters  patent,  substantially 
as  described  and  claimed  in  the  said  letters  patent. 
[Add  teste.] 


No.  953. 

Order  Refusing  Injunction  in  a  Patent  Suit  upon  Defendant 

Giving  Bond. 

[Caption.] 

And  now,  this  day  of  ,   1893,  the  above  cause 

having  come  on  to  be  heard  on  the  day  of  ,  on 

motion  of  plaintifif  for  a  preliminary  injunction  in  accordance 
with  the  prayer  of  the  bill  in  the  above  entitled  cause,  and 
upon  af^davits  and  exhibits  filed  by  the  plaintiff  and  the 
defendant,  and  having  been  argued  by  counsel  for  the  respec- 
tive parties,  and  the  court  having  fully  considered  the  same, 
the  motion  is  overruled  at  the  cost  of  the  plaintiff,  but  it  is 

ordered  that   the   defendant  give  bond   in  the  sum  of  

dollars  to  the  plaintiiT  for  the  payment  of  any  profits  or 
damages  that  may  be  decreed  against  it  in  this  cause  for  the 
infringement  of  the  patent  sued  on  (between  the  date  of  this 
order  and  the  final  decree)  :  and  it  is  further  ordered  that  if 
the  defendant  fails  to  execute  and  file  with  the  clerk  of  this 
court  such  bond  within  twenty  days  from  the  date  of  this 
entry,  plaintifif  may  renew  said  motion. 

It  is  further  ordered  that  the  defendant  keep  an  account 
of  all  sales  of  chimneys  manufactured  and  sold,  or  sold  by 

him  like   the   exhibits   marked   ,   to  be   produced   when 

called  for  by  the  court. 

No.  954. 

Bond  in  Lieu  of  Preliminary  Injunction  in  a  Patent  Suit. 

[Caption.] 
The  United   States   of  America, 
for  the  District  of ,  ss. 

Know  all  men  by  these  presents,  that  C.  D.,  as  principal, 
and  E.  R,  as  surety,  are  held  and  firmly  bound  unto  A.  B. 


1440  SUITS    IN    EQUITY, 

in  the  sum  of dollars,  to  the  payment  of  which  they  bind 

themselves  and  each  of  them,  their  heirs,  executors,  and  ad- 
ministrators, firmly  by  these  presents.  Sealed  with  our  seals, 
and  dated   this  day  of  ,    1894, 

The  condition  of  the  above  bond  is  such  that  whereas  in 
accordance  with  an  order  of  the  district  court  of  the  United 

States  within  and  for  the  district  of  ,  in  the  case 

wherein  A.  B,   is  plaintiff  and  C.  D.   is  defendant,  the  said 

C.  D.  executed  a  bond  in  the  sum  of dollars,  to  pay  the 

plaintiff  A.  B.  such  sum  as  may,  upon  final  hearing,  be  decreed 
in  his  favor  by  reason  of  infringement  of  the  patent  sued  on 
committed  between  the  date  of  the  order  of  said  court  and 
the  final  decree  herein,   in  the  said  cause. 

Now,  if  the  said  C.  D.  shall  abide  the  decisions  of  the  said 
court,  and  pays  all  moneys  and  costs  which  shall  be  attached 
against  him  in  this  cause,  then  these  presents  shall  be  void ; 
otherwise  to  remain  in  full  force. 

C.  D.   [Seal.] 
E,  F.   [Seal.] 

[Add  acknowledgment  and  justification  of  sureties.] 


No.  955. 

Writ  of  Injunction  (General  Form).(l) 

The  United  States  of  America, 
District  of  ,  ss. 

The  President  of  the  United   States  of  America  to   C.  D,, 
Greeting: 

Whereas,  A,  B.,  citizen  of  the  state  of  ,  has  filed  on 

the  chancery  side  of  the  district  court  of  the  United  States 

for  the  district  of  ,  a  bill  against  C.  D.,  and  has 

obtained  an  allowance  for  an  injunction,  as  prayed  for  in  said 
bill.  Now,  therefore,  we  having  regard  to  the  matters  in 
said  bill  contained,  do  hereby  command  and  strictly  enjoin 
you,  the  said  C.  D.,  [set  forth  from  doing  what  he  is  re- 
strained, also  the  names  of  all  persons  so  restrained],  which 


INJUNCTIONS.  1441 

commands  and  injunctions  you  are  respectively  required  to 
observe  and  obey,  until  our  said  district  court  shall  make 
further  order  in  the  premises. 

Hereof  fail  not,  under  penalty  of  the  law  thence  ensuing. 

[Add  teste.] 

(1)  Any  injunction  to  be  effective  should  be  served  personally  upon 
the  persons  to  be  enjoined,  but  this  is  not  necessary  when  the  party  to 
be  enjoined  has  actual  notice  that  the  injunction  has  been  granted. 
Ex  parte  Lennon,  166  U.  S.  548;  Ulman  v.  Ritter,  72  Fed.  1000;  affirmed, 
78  Fed.  222,  24  C.  C.  A.  71;  In  re  Gary,  10  Fed.  622;  Toledo,  etc.,  R. 
Co.  V.  Penn.  Co.,  54  Fed.  746,  19  L.  R.  A.  395;  Statelet  v.  Calif.  Natl. 
Bank,  77  Fed.  43;  U.  S.  v.  Sweeney,  95  Fed.  434. 


No.  956. 

Marshal's  Return  of  Writ  of  Injunction. 

Received  this  writ  at  ,  on  the  day  of ,  and 

on  the  same  day  I  served  the  within  named  The  C.  D.  Manu- 
facturing Company  by  leaving  a  true  copy  of  this  writ,  with 
all  the  endorsements  thereon,  at  the  usual  place  of  residence 
of  P.  J.,  president  of  said  company,  placing  same  in  the  hands 
of  an  adult  member  of  his  family;  and  on  the  same  day  I 
served  said  company  by  leaving  a  true  copy  of  this  writ  with 
all  the  endorsements  thereon  at  the  usual  place  of  residence 
of  T.  O.,  secretary  and  treasurer  of  said  company,  placing 
same  in  the  hands  of  his  son  K.  W. 

And  on  the  same  day  I  served  the  said  The  C.  D.  Manu- 
facturing Company  by  handing  a  true  copy  of  this  writ  with 
all  the  endorsements  thereon  to  H.  G.,  superintendent  of  said 
company  personally.  S.  R., 

U.  S.  Marshal. 
By  L.  J.,  Deputy. 


1442  SUITS    IN    EQUITY. 

No.  957. 

Injunction  to  Restrain  Certification  of  Values  to  Comptroller 

^OT  Taxation. 

The  President  of  the  United  States  of  America  to  the  Mar- 
shal of  the  District  of  ,  Greeting: 

Whereas,  a  decree  was  rendered  by  the  District  Court  of 
the  United  States  for  the District  of and  thereaf- 
ter, to  wit,  on ,  entered  in  the  clerk's  office  of  said  court, 

wherein  it  is  decreed  that  E.  F.,  governor,  G.  H.,  treasurer, 
and  J.  K.,  secretary  of  state,  ex-ofUcio  Board  of  Equalization, 
shall  not  deliver  or  certify  to  the  comptroller  of  the  state  of 

the  valuation  fixed  by  them  upon  the  property  of  the 

complainant,  the  A.  B.  Company,  in  a  suit  in  equity  pending 

in  said  court  against  them,   in  ,   for  taxation,   for  the 

years and ,  as  shown  and  set  forth  in  said  bill  and 

from  certifying  and  delivering  said  assessment  or  any  record 
thereof  to  the  said  comptroller,  etc. 

Therefore  you  will  make  known  unto  the  said  E.  P.,  G.  H. 
and  J.  K.,  governor,  treasurer  and  secretary  of  state,  respec- 
tively. Board  of  Equalization,  and  enjoin  them,  their  agents, 
servants,  clerks,  and  attorneys  from  certifying  or  delivering 
said  valuation,  or  said  assessment,  or  any  record  thereof,  to 
said  comptroller  of  the  treasury  of  the  state  of  . 

This  you  will  in  no  wise  omit  and  due  return  make  .hereof 
of  how  you  have  executed  this  writ  to  the  April  term  of  our 
said  court,  the of  . 

Witness,  the  Hon.  Melville  W.  Fuller,  chief  justice  of  the 

United  States,  this  the  day  of  ,  and  of  American 

Independence  the  one  hundred  and  year. 

B.   R., 
Clerk  of  the  District  Court  of  the  United  States 
for  the District  of . 


INJUNCTIONS.  1443 

No.  958. 

Injunction  Restraining  a  Telephone  Company  Connecting  its 
Instruments  with  Those  of  a  Rival  Company. 

The  President  of  the  United  States  to  The  People's  Telephone 
Company  and  J.  C. ;  and  to  their  counselors,  attorneys, 

solicitors  and  agents,  and  each  and  every  of  them  

Greeting : 

Whereas.  The  A.  B.  Telephone  Company  has  lately  filed 
an  original  bill  of  coniplaint  in  said  District  Court  of  the 
United  States  at  ,  against  you,  the  said  People's  Tele- 
phone Company  and  J.  C,  to  be  relieved  touching  the  matters 
set  forth  in  said  bill,  in  which  it  is  charged  that  your  actings 
and  doings  in  the  premises  are  contrary  to  equity  and  good 
conscience ;  and  whereas,  the  Honorable  C.  D.,  judge  of  the 
District  Court  of  the  United  States,  in  said  District,  has  or- 
dered that  an  injunction  issue,  as  prayed  by  complainant. 

Therefore,  in  consideration  of  said  fiat,  and  of  the  partic- 
ular matters  in  said  bill  set  forth,  you,  the  said  People's  Tele- 
phone Company  and  J.  C,  and  the  persons  before  named,  and 
each  and  every  of  you,  are  hereby  strictly  commanded  and 
enjoined,  under  the  penalty  of  a  contempt  of  court,  that  you 
do  absolutely  desist  and  refrain  from  making  any  further 
connections  by  wires,  switches,  instruments  or  any  other 
devices  of  any  kind  or  character,  directly  or  indirectly,  or 
furnishing  material  for  the  same,  or  advising,  showing  or 
directing  any  other  parties  how  to  make  the  same  with  the 
property  of  the  complainant,  as  complained  of  in  the  bill  to 
which  reference  is  made. 

And  you,  and  each  of  you,  are  hereby  restrained,  inhibited 
and  enjoined  from  the  further  use  of  the  connections  hereto- 
'fort  made  that  are  now  being  operated  and  maintained  by 
wires  and  material  furnished  by  the  defendant  company,  and 
J.  C,  and  are  inhibited  and  restrained  from  furnishing  for 
use  wires,  instruments  or  other  devices  connected  or  to  remam 
connected,  as  specifically  prayed  for  in  the  bill  of  the  com- 


1444  SUITS    IN    EQUITY. 

plainant,  until  the  further  order  of  the  said  court  in  the  prem- 
ises. 
Witness  the  Honorable  Melville  W.  Fuller,  chief  justice  of 

the  Supreme  Court  of  the  United   States,  at  ,   in  said 

District,  this day  of . 

[Seal.]  B.  R., 

Clerk  of  the  District  Court  of  the  United  States 
for  the District  of . 


No.  959. 

Wr£t  of  Injunction  Against  Chief  Executive  of  Labor  Union. 

The  President  of  the  United  States  of  America,  to  Peter  M. 
Arthur  —  Greeting :  • 

Whereas,  the  Toledo,  Ann  Arbor  &  North  Michigan  Rail- 
way Company,  citizen  of  the  state  of  Michigan,  has  filed  on 
the  chancery  side  of  the  Circuit  Court  of  the  United  States, 
within  and  for  the  Northern  District  of  Ohio,  a  bill  against 
the  Pennsylvania  Company,  the  Wheeling  &  Lake  Erie  Rail- 
way Company,  the  Lake  Shore  &  Michigan  Southern  Railway 
'Company,  the  Michigan  Central  Railroad  Company,  the  Cin- 
cinnati, Hamilton  &  Dayton  Railroad  Company,  the  Colum- 
bus, Hocking  Valley  &  Toledo  Railway  Company,  the  Toledo 
&  Ohio  Central  Railway  Company,  the  Cincinnati,  Jackson 
&  Mackinaw  Railway  Company,  Peter  M.  Arthur  and  others, 
and  has  obtained  an  allowance  of  an  injunction,  as  prayed 
•for  in  said  bill,  from  Honorable  William  H.  Taft,  judge  of 
said  court. 

Now,  therefore,  we  having  regard  to  the  matters  in  said 
bill  contained,  do  hereby  command  and  strictly  enjoin  and 
restrain  you,  the  said  Peter  M.  Arthur  from  issuing,  promul- 
gating, or  continuing  in  force  any  rule  or  order  of  any  kind 
under  the  rules  and  regulations  of  the  association  known  as 
the  Brotherhood  of  Locomotive  Engineers  or  otherwise, 
which  shall  require  or  command  any  employes  of  any  of  the 
defendant  railway  companies  herein  to  refuse  to  receive,  han- 
dle or  deliver  any  cars  of  freight  in  course  of  transportation 


INJUNCTIONS.  1445 

from  one  state  to  another,  from  and  to  the  Toledo,  Ann 
Arbor  &  North  Michigan  Railway  Company,  or  from  refus- 
ing to  receive  or  handle  cars  of  such  freight  which  have  been 
hauled  from  the  railroad  of  said  Toledo,  Ann  Arbor  &  North 
Michigan  Railway  Company,  and  also  from  in  any  way, 
directly  or  indirectly,  endeavoring  to  persuade  or  induce  any 
employes  of  the  railway  companies  whose  lines  connect  with 
the  railroad  of  said  Toledo,  Ann  Arbor  &  North  Michigan 
Railway  Company  not  to  extend  to  said  company  the  same 
facilities  for  interchange  of  interstate  traffic  as  are  extended 
by  said  companies  or  other  railway  companies. 

Which  commands  and  injunctions  you  are  respectfully 
required  to  observe  and  obey,  until  our  said  District  Court 
shall  make  further  order  in  the  premises. 

Hereof  fail  not,  under  penalty  of  the  law  thence  ensuing. 

Witness,  the  Honorable  Melville  W.  Fuller,  chief  justice 
of  the  United  States,  this  5th  day  of  April,  A.  D.,  1893,  and 
in  the  117th  year  of  the  Independence  of  the  United  States 
of  America.  Irvin   Belford,   Clerk. 

[Seal.]  By  Ford  Belford,  Deputy  Clerk. 

Said  writ  was  returned  to  the  clerk's  office  of  said  court  and 
filed  on  April    10,    1893,  having  the   following  endorsement 
thereon,  to  wit : 
Northern  District  of  Ohio,  ss. 

On  the  7th  day  of  April,  A.  D.  1893,  at  Cleveland,  Ohio, 
I  made  due  service  of  this  writ  upon  the  within  named  Peter 
M.  Arthur  by  delivering  to  him  a  true  and  certified  copy 
thereof.  W.  C.  Haskell, 

Service,    $2.00  U.  S.  Marshal. 

Copy 50  By  B.  F.  Seymour,  Deputy. 

Expenses    .  .  .      .25 


$2.75 


(1)  This  writ  of  injunction  was  issued  and  served  on  Peter  M. 
Arthur,  chief  of  Brotherhood  of  Locomotive  Engineers,  in  the  case  of 
Toledo,  etc.,  R.  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730. 


1446  SUITS    IN    EQUITY. 

No.  960. 

Injunction  Bond. 

The  United  States  of  America, 
District  of  ,  ss. 

Know  all  men  by  these  presents,  that  C.  D.,  E.  R,  and 
G.  H.  are  held  and  firmly  bound  unto  A.^  B.  in  the  sum  of 

dollars,  to  the  payment  of  which  they  bind  themselves, 

each  for  himself  and  his  heirs,  executors  and  administrators 
firmly  by  these  presents. 

Sealed  with  their  seals  and  dated  this  day  of , 

1894. 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
A.  B.,  citizen  of  the  state  of ,  having  filed  on  the  chan- 
cery side  of  the  district  court  of  the  United  States  for  the 

district  of a  bill  against  the  said  C.  D.,  and  hav- 
ing obtained  an  allowance  of  an  injunction,  as  prayed  for  in 
said  bill,  from  said  court.  Now,  if  the  said  C.  D.  shall  abide 
the  decision  of  said  court,  and  pay  all  moneys  and  costs  which 
shall  be  adjudged  against  him  in  case  the  said  injunction  shall 
be  dissolved,  then  these  presents  shall  be  void;  otherwise  to 
remain  in  full  force. 

C.  D.   [Seal.] 
'■  E.  F.   [Seal.] 

G.  H.    [Seal.] 
[Add  acknowledgment  and  justification  of  sureties.] 


No.  961. 

Motion  to  Modify  Injunction.  (1) 

[Caption.] 

Now  comes  the  defendant  by  its  counsel  and  moves  the 
court  to  modify  the  injunction  heretofore  granted  in  this 
cause  in  the  following  respects,  to  wit:  [Here  state  the  modi- 
fication desired.]  R.  Y. 

(1)  This  motion  should  regularly  be  presented  to  the  judge  who 
granted  the  injunction.  See  Klein  v.  Fleetford,  35  Fed.  98;  Westerly 
Water  Works  v.  Westerly,  77  Fed.  783. 


INJUNCTIONS.  1447 

No.  962. 

Motion  to  Dissolve  Injunction.  (1) 

^Caption] 

Defendant,  C.  D.,  now  moves  this  honorable  court  to  dis- 
solve the  temporary  injunction  or  restraining  order  granted 
in  this  case  on  the  ground  that  this  defendant  has  filed  herein 
a  good  and  sufficient  answer  under  oath.  X.  &  X., 

Attorneys  for  Defendants. 

We  have  notice  of  the  above  motion.  Y.  &  Y., 

Attorneys   for  Plaintiff. 

(1)  A  motion  to  dissolve  an  injunction  is  regularly  presented  to  the 
judge,  who  granted  the  injunction.  Klein  v.  Fleet'ford,  35  Fed.  98; 
Westerly  Water  Works  v.  Westerly,  77  Fed.  783. 

The  motion  should  be  supported  by  affidavits. 


No.  963. 

Motion  to  Dissolve  Preliminary  Injunction.  (1) 
[Caption] 

And  now  comes  the  defendant,  by  its  counsel,  and  moves 
the  court  to  dissolve  the  injunction  heretofore  issued  in  this 
cause,  on  the  ground  that  the  patent  sued  on  is  invalid  and 
void  in  view  of  the  exhibits  filed  herein  on  behalf  of  defend- 
ant, or  to  modify  the  injunction  so  as  not  to  prohibit  the  man- 
ufacturing and  selling  of  hobby-horses  by  C.  D.  under  and 

in  accordance  with  letters  patent  No. ,  granted  to  A.  B., 

,    1893,    for   the   reason   that   said   hobby-horses   do    not 

infringe  said  patent  sued  on.  R.  Y., 

Solicitor  for  Defendant. 

(1)  See  Robinson  on  Patents,  Sec.  1213. 


1448  SUITS    IN    EQUITY. 

No.  964. 

Order  Overruling  Motion  to  Dissolve. 

[Caption.] 

This  case  coming-  on  to  be  heard  this day  of ,  on 

motion  of  the  defendant  to  dissolve  the  preliminary  injunc- 
tion, and  counsel  having  been  heard  for  the  defendant  as  well 
as  for  the  plaintiff,  and  due  consideration  having  been  had 
thereof,  it  is  ordered  that  the  said  motion  be  and  the  same 
is  hereby  overruled  at  the  defendant's  cost. 


No.  965. 

An  Order  Granting  Motion  to  Dissolve  Injunction  and 

Substituting  Bond  for  Injunction. 
[Caption.] 
This  cause  came  on  to  be  heard  on  the day  of 


on  the  motion  of  defendant  filed  ,  1894,  to  dissolve  the 

preliminary  injunction  heretofore  granted  in  this  cause,  and 
counsel  having  been  heard,  and  the  same  having  been  duly 
considered  by  the  court,  it  is  ordered,  adjudged,  and  decreed 
that  the  said  injunction  be  set  aside,  provided  the  said  defend- 
ant within  five  days  give  a  good  and  sufficient  bond  in  the 
sum  of dollars,  to  pay  all  damages  and  profits  with  ref- 
erence to  any  account  which  may  be  found  or  assessed  against 
the  said  defendant  by  reason  of  the  manufacture  and  sale  of 
hobby-horses,  and  all  manufactures  and  sales  in  infringe- 
ment of  plaintiff's  letters  patent  sued  on  in  his  said  bill,  and 

the  bond  shall  relate  back  to  the  day  of  ■,  when 

the  order  for  injunction  was  first  made. 


No.  966. 

Order  Dissolving  Injunction. 

[Caption.] 

This  cause  coming  on  to  be  heard  upon  the  motion  of  the 
defendant  to  dissolve  the  injunction  heretofore  granted  in  this 


INJUNCTIONS.  1449 

cause,  and  upon  affidavits  in  support  of  and  against  the  said 
motion,  and  counsel  having  been  heard,  and  the  same  having 
been  considered  by  the  court,  it  is  hereby  ordered,  adjudged 
and  decreed  that  the  same  be  and  it  is  hereby  set  aside  and 
vacated. 


No.  967. 

Final  Decree  Making  a  Temporary  or  Preliminary  Injunction 

Perpetual.  (1) 

This  cause  came  on  for  final  hearing  on  the  bill  of  com- 
plaint, and  the  amendment  thereto  herein  filed  upon  the  

day  of  ,   the  answer  of  the  defendant.  C  .D.,  and  the 

replication  thereto :  and  thereupon  it  was  by  and  between 
counsel  for  complainant  and  said  C.  D.,  with  the  consent  of 
the  court,  agreed  that  said  cause  should  be  submitted  upon 
the  same  evidence  on  this  final  hearing  as  was  had  and  pro- 
duced before  the  court  at  the  hearing  upon  the  motion  for  a 
preliminary  injunction  hereinbefore  allowed.  And  thereupon 
said  evidence  being  submitted,  the  cause  was  argued  by  coun- 
sel. 

Upon  consideration  whereof  the  court  being  fully  advised 
in  the  premises,  do  find  that  the  equity  in  the  case  is  with  the 
complainant  as  against  the  said  C.  D.,  and  that  the  said  E. 
&  F.  Railway  Company  is  entitled  to  the  relief  for  which  it 
prays  as  against  him. 

It  is  therefore  accordingly  ordered,  adjudged  and  decreed 
by  the  court  that  the  injunction  heretofore  granted  in  the 
case  as  against  the  said  C.  D.  be  made  perpetual,  and  that 
said  C.  D.  pay  all  the  costs  herein  made. 

(1)  Taken  from  the  record  in  Arthur  v.  Toledo,  etc.,  R.  Co.,  11  C.  C. 
A.  583. 


1450  SUITS    IN    EQUITY. 

No.  908. 

Motion  for  Restraining  Order  and  Application  for  Hearing  on 
Injunction  under  Judicial  Code,  Section  266. 

[Caption.] 

Now  comes  complainant  and  files  this,  its  motion  for  the 
issuance  of  a  restraining  order  for  the  reasons  and  on  the 
grounds  set  forth  in  its  Bill  of  Complaint  to  prevent  irrepar- 
able damage  to  complainant;  and  complainant  further  makes 
this  its  application  to  this  Court  for  a  hearing  on  this  cause 
for  an  interlocutory  injunction  in  accordance  with  Section 
266  of  the  Judicial  Code  of  the  United  States,  as  amended 
by  the  Act  of  Congress  approved  March  14th,  1913. 

A.   B.  and  C.  D., 
Attorneys  for  Complainant. 


No.  969. 

Restraining  Order  and  Order  to  Appear  for  Hearing  Before 
Three  Judges  for  Preliminary  Injunction  under  Judicial 
Code,  Section  266. 

[Caption.]  ' 

Whereas,  in  the  above  named  cause  it  has  been  made  to 
appear  upon  the  bill  of  complaint  filed  herein  that  a  writ  of 
injunction  preliminary  to  the  final  hearing  is  proper,  and  that 
prima  facie  the  complainant  is  entitled  thereto,  enjoining  the 
defendants  from  the  acts  complained  of  and  about  to  be  com- 
mitted. 

Now,  on  motion  of  the  said  complainant,  it  is  ordered  that 
the  defendants  appear  before  the  Judge  of  this  District  Court 
of  the  United  States  for  the  Southern  District  of  Mississippi, 
and  a  judge  of  the  Circuit  Court  of  the  United  States,  and 
another  district  judge  of  the  United  States  Court,  sitting  to 
hear  this  matter  on  the  27th  day  of  October,  1914,  at  10:00  a. 
m.,  at  the  court  room  of  the  United  States  Circuit  Court  of 
Appeals  at  New  Orleans,  Louisiana,  and  then  and  there  show 


INJUNCTIONS.  1451 

the  cause,  if  any  they  have,  why  the  preliminary  injunction 
therein  prayed  for  should  not  issue.  And  it  appearing-  to  the 
undersigned  district  judge  that  there  is  danger  of  irreparable 
injury  being  caused  to  the  complainant  before  the  hearing  of 
said  application  for  this  preliminary  writ  of  injunction  can  be 
had,  unless  defendants  are,  pending  such  hearing,  restrained 
as  hereinafter  set  forth ; 

Therefore,  complainant's  application  for  such  restraining 
order  is  granted  upon  its  giving  bond  with  good  and  sufficient 
surety,  to  be  approved  by  the  clerk  of  this  court  in  the  penal 
sum  of  $10,000.00,  securing  the  said  defendants  against  all 
loss  or  damage  which  may  result  from  the  issue  of  said  order, 
if  it  should  be  finally  determined  that  the  same  was  improperly 
issued,  or  that  it  may  aw-ard  to  them  by  reason  of  the  granting 
of  said  order. 

Now,  therefore,  it  is  ordered  that  the  Mississippi  Railroad 
Commission,  F.  M.  Sheppard,  president  and  member  of  the 
said  commission,  George  R.  Edwards  and  W.  B.  Wilson, 
members  of  said  commission,  and  Ross  A.  Collins,  Attorney 
General  of  Mississippi,  be  and  they  are  hereby  specially 
restrained  and  enjoined  until  further  order  of  this  court,  from 
enforcing  or  taking  any  steps  to  enforce  compliance  by  com- 
plainant with  any  of  those  six  orders  issued  by  the  said  com- 
mission on  October  7,  1914,  directing  complainant  to  oper- 
ate certain  passenger  trains  numbered  7,  8,  9,  10,  11  and  12; 
further  restraining  and  enjoining  all  of  said  defendants  and 
their  attorneys  and  agents  and  all  other  parties  from  taking 
any  steps  to  collect  from  complainant  any  of  the  penalties  pro- 
vided in  any  of  said  orders. 

It  is  further  ordered  that  a  copy  of  this  order,  certified 
under  the  hand  of  the  clerk  and  seal  of  the  court,  be  served 
on  each  of  the  defendants  to  be  restrained  hereby,  and  that 
copies  of  this  order  duly  certified  under  the  hand  of  the  clerk 
and  the  state  of  Mississippi,  and  that  the  hearing  of  this  cause 
on  an  application  for  an  interlocutory  injunction  be  had  and 
proceeded  with  in  accordance  with  Section  266  of  the  Judicial 


1452 


SUITS    IN    EQUITY, 


Code  of  the  United  States  as  amended  by  the  Act  of  Congress 
approved  March   14,    1913. 

Dated  at  Aberdeen,  Miss.,  eastern  division  of  the  northern 
district  of  Mississippi,  this  the  8th  day  of  October,  1914. 

H.    C.    NiLES, 

Judge  of  the  United  States  District  Court 
for  the  Southern  District  of  Mississippi. 
Taken  from  Miss.  Ry.  Com.  v.  Ry.,  244  U.  S.  388. 


No.  970. 

MarshaVs  Return  on  Restraining  Order  under  Judicial  Code, 

Section  266, 

Received  in  office  at  Jackson,  Miss.,  this  October  9,  1914, 
Executed  by  handing  a  true  copy  of  this  writ  to  James  Gal- 
ceran,  secretary  of  the  Mississippi  Railroad  Commission;  Ross 
A.  Collins,  attorney  general ;  Earl  Brewer,  governor,  at  Jack- 
son, Miss.,  this  9th  day  of  October,  1914. 

John  G.  Cashman,  U.  S.  M., 
By  C.  B.  Freeny,  D.  M. 

Executed  by  handing  a  true  copy  of  this  v^rit  to  F.  M.  Shep- 
pard  at  Beaumont,  Miss.,  this  October  12,  1914. 

John  G.  Cashman,  U.  S.  M., 
By  J.  D.  Money,  D.  M. 


No.  971. 

Order  by  Circuit  Judge  where  District  Judge  not  Available. 
Setting  Down  Application  for  Hearing  on  Temporary  In- 
junction, Calling  Two  Judges  to  Aid,  Naming  a  Place  for 
the  Hearing  before  the  Three  Judges,  and  Granting  Tem- 
porary Restraining  Order. 

[Caption.] 

The  application  for  a  temporary  injunction  and  temporary 
restraining  order,  to  remain  in  force  until  the  hearing  of  the 
said  application  for  a  temporary  injunction  can  be  heard  and 
determined,  was  presented  to  me  this  2nd  day  of  September, 
1916,  and  it  was  shown  that  the  Honorable  T.  .S.  Maxey, 


INJUNCTIONS.  *  1453 

■  United  States  District  Judge  for  the  Western  District  of 
Texas,  is  absent  from  said  district,  and  for  that  reason  is 
unable  to  hear  and  act  upon  said  application ;  and  having 
read  and  considered  the  bill  presented,  it  is  ordered  that  the 
same  be  filed  and  that  the  application  for  a  hearing  for  a 
temporary  injunction  is  granted  and  such  hearing  is  set  down 
for  September  28,  1916,  at  my  chambers  in  the  city  of 
Atlanta,  Georgia,  at  ten  o'clock  a.  m.  That  immediate  notice 
of  said  hearing,  not  less  than  five  days,  shall  be  given  to  the 
governor  and  the  attorney  general  of  Texas  and  the  defend- 
ants. And  I  hereby  call  to  my  assistance  at  said  hearing  of 
said  application  the  Honorable  Richard  W.  Walker,  Circuit 
Judge  of  this  circuit,  and  the  Honorable  William  T.  Newman, 
District  Judge  of  the  northern  district  of  Georgia. 

It  being  further  shown,  and  it  is  my  opinion,  that  irrepar- 
able loss  and  damage  will  result  to  complainants  unless  a 
temporary  restraining  order  is  granted,  it  is  ordered  that  such 
temporary  restraining  order  be  granted,  and  the  clerk  of  the 
district  court  for  the  Western  District  of  Texas  is  ordered 
and  directed  to  issue  a  temporary  restraining  order  as  prayed 
for  restraining  the  Railroad  Commission  of  Texas,  the  attor- 
ney general  and  others  with  notice,  from  filing  and  prosecut- 
ing suits  against  the  plaintiffs  or  either  of  them  for  failure 
or  refusal  to  put  into  efifect  circular  number  5060  of  the  Rail- 
road Commission  of  Texas,  dated  August  28,  1916,  until 
such  time  as  the  application  for  temporary  injunction  can  be 
heard  and  determined,  and  the  said  temporary  restraining 
order  issued  by  said  clerk  shall  restrain  and  prevent  the  Rail- 
roa  Commission  of  Texas,  the  attorney  general  of  Texas  and 
the  other  defendants  hereto,  and  others  with  notice,  from  filing 
and  prosecuting  suits  against  the  plaintiflfs  or  either  of  them 
for  damages  or  penalties,  for  charging  by  them,  on  and  after 
Nov.  1,  1916,  the  rates  prescribed  and  authorized  by  the 
Interstate  Commerce  Commission  in  its  order  of  July  7,  1916, 
on  shipments  moved  between  points  in  the  state  of  Texas, 
and  such  temporary  restraining  order  as  prayed  for  to  re- 


1454  "  SUITS    IN    EQUITY. 

main  in  force  until  the  hearing  and  determination  of  the 
application  for  an  interlocutory  or  temporary  injunction  upon 
notice  as  aforesaid. 

This  September  2nd,  1916,  at  Atlanta,  Georgia. 

Don  a.  Pardee, 
Circuit  Judge. 


No.  972. 

Motion  to  Show  Cause  Why  Temporary  Injunction  Should  not 
Issue  under  Judicial  Code  Section  266,  and  for  Restraining 
Order. 

[Caption.] 

Come  now  the  above  named  plaintiflFs  and  allege  and  show 
the  court  as  follows : 

That  there  has  been  instituted  in  the  above  entitled  court  an 
action  by  bill  of  complaint  against  W.  V.  Tanner,  as  attorney 
general  of  the  State  of  Washington,  and  George  H.  Crandall, 
as  prosecuting  attorney  of  Spokane  county,  Washington,  the 
object  and  purpose  of  said  action  being  to  secure  from  this 
honorable  court  an  order  that  the  said  defendants  above  men- 
tioned, and  all  other  persons,  be  restrained  and  ^njoined  pro- 
visionally, preliminarily  and  perpetually  by  the  order  and  in- 
junction of  this  court  from  bringing  directly  or  indirectly  any 
proceedings  at  law  or  in  equity  for  the  enforcement  of  that 
certain  law  known  and  referred  to  as  Initiative  Measure  No. 
8,  entitled  as  follows : 

"An  act  to  prohibit  the  collection  of  remuneration  or  fees 
from  workers  for  the  securing  of  employment  or  furnishing 
information  leading  thereto,  and  providing  a  penalty  for  vio- 
lation thereof,"  said  act  having  been  adopted  at  the  last  gen- 
eral election  held  in  the  state  of  Washington  on  the  3rd  day 
of  November,  1914,  and  which  law  will  become  effective  on 
the  3rd  day  of  December,  1914,  and  from  causing  the  plain- 
tiffs, or  any  of  their  officers,  agents,  employees  or  servants, 
from  being  arrested  for  violation  of  the  terms  and  provisions 
of  said  act,  and  from  taking  any  other  action  or  in  any  man- 


INJUNCTIONS.  1455 

ner  interfering  with  the  plaintiffs,  or  either  of  them  or  their 
business,  by  reason  of  said  act,  and  praying  that  an  order  to 
show  cause  herein  issue  upon  application  of  the  plaintiffs 
herein  directed  to  the  above  named  defendants,  and  each  of 
them,  requiring  them  and  each  of  them  to  show  cause  why  a 
temporary  injunction  should  not  issue  as  prayed  for  herein 
and  for  other  equitable  relief. 

Plaintiffs  further  allege  and  show  to  this  honorable  court 
that  the  act  hereinbefore  referred  to  is  contrary  to  the  terms, 
provisions  and  protection  of  the  Constitution  of  the  United 
States  and  amendments  thereof  and  is  therefore  void,  all  of 
which  is  more  fully  alleged,  set  out  and  explained  in  the  bill 
of  complaint  filed  herein,  and  that  said  act  is  also  contrary 
to  the  terms,  provisions  and  protection  of  the  constitution  of 
the  state  of  Washington,  and  is  therefore  void,  all  of  which 
is  more  fully  alleged,  set  out  and  explained  in  the  bill  of 
complaint  filed  herein. 

That  said  act  becomes  effective  and  a  law  of  the  state  of 
Washington  on  December  3,  1914,  and  the  defendants  and 
each  of  them  now  threaten  to  and  will,  unless  enjoined  and 
restrained  by  this  honorable  court,  prosecute  the  complainants, 
their  officers,  agents,  employees  and  servants  for  violation 
of  its  provisions,  all  of  which  is  more  fully  set  out  in  the  bill 
of  complaint  herein  filed,  to  which  reference  is  hereby  made 
and  by  which  reference  said  bill  of  complaint  is  made  a  part 
of  this  application.  That  by  reason  thereof  and  for  the  fur- 
ther reason  that  before  notice  of  the  time  and  place  for  the 
hearing  of  said  temporary  or  interlocutory  injunction  can  be 
heard  by  this  honorable  court  and  be  determined  by  three 
judges  in  the  manner  provided  by  law,  the  defendants  will 
cause  irreparable  damage  and  loss  to  the  plaintiffs  as  they 
now  threaten  to  do,  and  plaintiffs  move  the  court  for  an  order 
directed  to  the  defendants  and  each  of  them,  citing  and  requir- 
ing them  to  appear  before  this  honorable  court  and  such 
other  judges  as  this  court  shall  designate,  at  a  time  and  place 
to  be  fixed  by  this  court  according  to  law,  then  and  there 


1456  SUITS    IN    EQUITY. 

to  show  cause,  if  any  they  have,  why  a  temporary  or  inter- 
locutory injunction  should  not  issue  against  them  and  each 
of  them  in  the  manner  hereinbefore  stated.  And  for  the  rea- 
sons hereinbefore  set  forth  the  plaintiffs  further  move  the  court 
for  a  temporary  restraining  order  remainable  in  force  until  the 
hearing  and  determination  of  the  application  for  an  interloc- 
utory injunction  restraining  the  defendants  and  each  of  them 
in  the  manner  that  an  interlocutory  injunction  is  sought. 

This  application  is  based  upon  the  bill  of  complaint  on 
file  herein  and  upon  the  affidavits  attached  hereto  and  filed 
herewith. 

(Signed)        A.  B.  and  C.  D., 
Attorneys  for  Plaintiffs. 

Taken  from  Puget  Sound,  etc.,  Co.  v.  Pub.  Service  Com.  of 
Washington,  244  U.  S.  574. 


No.  973. 

Notice  of  Hearing  on  Motion  for  Temporary  Injunction  under 
Judicial  Code  Section  266. 
[Caption  ] 
To  Honorable  Ernest  Lister,  Governor  of  the  State  of  Wash- 
ington ;  Honorable  W.  V.  Tanner,  Attorney  General  of  the 
State   of   Washington ;    Honorable  Charles   A.    Reynolds, 
Frank  R.  Spinning,  and  Arthur  A.  Lewis,  Constituting  the 
Public   Service  Commission  of  the  State  of  Washington : 
You,  and  each  of  you,  are  hereby  notified  that  the  Puget 
Sound  Traction,  Light  &  Power  Company,  the  above  named 
plaintiff,  has  filed  its  verified  bill  of  complaint,  supported  by 
af^davits,  in  the  District  Court  of  the  United  States  for  the 
Western  District  of  Washington,  Northern  Division,  against 
Charles   A.    Reynolds,    Frank    R.    Spinning   and    Arthur   A. 
Lewis,    constituting  the    Public    Service   Commission   of   the 
state  of  Washington,  and  W.  V.  Tanner,  as  attorney  general 
of  the  state  of  Washington,   praying  that  the  order  of  the 
Public  Service  commission  of  the  state  of  Washington,  made 
on  the  24th  day  of  March,  1915,  in  reference  to  the  Ballard 
Beach  line,  Alki  Point  line  and  the  Fauntleroy  Park  line  of 


INJUNCTIONS.  1457 

the  above  named  plaintiff  be  adjudged  null  and  void,  and  the 
enforcement  of  such  order  by  the  Public  Service  Commission 
and  the  attorney  general  be  perpetually  enjoined. 

In  such  suit  the  plaintiff  has  moved  for  the  temporary 
injunction  to  be  in  effect  during  the  pendency  of  the  suit 
enjoining  the  Public  Service  Commission  and  the  attorney 
general  from  proceeding  to  enforce  such  order  and  from  pro- 
ceeding against  the  plaintiff  for  non-compliance  therewith. 
The  motion  for  such  temporary  injunction  will  be  heard  in 
•the  United  States  District  Court  at  the  court  house  thereof, 
in  the  city  of  Seattle,  King  county,  state  of  Washington,  on 
the  17th  day  of  April,  1915.  at  10.00  o'clock  a.  m. 

You  are  further  notified  that  a  temporary  restraining  order 
has  been  granted  in  the  above  entitled  suit  restraining  the 
Public  Service  Commission  and  the  attorney  general  of  the 
state  from  proceeding  to  enforce  such  order,  and  from  pro- 
ceeding against  the  plaintiff  for  'non-compliance  therewith 
until  the  hearing  of  the  motion  of  the  plaintiff  for  a  tempo- 
rary injunction. 

James  B.  Howe, 
Hugh   A.   Tait, 
Solicitors  for  Plaintiff. 


No.  974. 

Order  to  Show  Cause  Why  a  Temporary  Injunction  Should 

not  Issue. 

[Caption.] 

This  cause  came'  on  duly  and  regularly  for  hearing  before 
the  court  on  application  of  the  above  named  plaintiffs  for  an 
interlocutory  injunction,  enjoining  the  defendants  and  each  of 
them,  and  all  other  persons  from  bringing,  either  directly, 
or  indirectly,  any  proceeding  at  law  or  in  equity  for  the  en- 
forcement of  that  certain  law  known  and  referred  to  as  Initia- 
tive Measure  No.  8,  entitled  as  follows: 

"An  act  to  prohibit  the  collection  of  remuneration  or  fees 
from  workers  for  the  securing  of  employment  or  furnishing 


1458  SUITS   IN    EQUITY. 

information  leading  thereto,  and  providing  a  penalty  for  vio- 
lation thereof." 

Said  act  having  been  adopted  at  the  last  election  held  in 
the  state  of  Washington  on  the  3d  day  of  November,  1914; 
and  from  causing  the  plaintiffs,  their  officers,  agents,  servants 
or  employes  to  be  arrested,  and  from  taking  any  other  action, 
or  in  any  other  manner  interfering  with  the  plaintiffs  or  either 
of  them  or  their  business  by  reason  of  said  law ;  and  that 
an  order  to  show  cause  issue  herein  upon  the  application  of 
plaintiffs,  directed  to  the  above  named  defendants,  requiring* 
them  to  show  cause  why  a  temporary  injunction  should  not 
issue  as  prayed  for  herein,  and  the  court  being  fully  advised 
in  the  premises, 

It  is  hereby  ordered  that  the  defendants,  and  each  of  them, 
be  and  appear  before  the  above  entitled  court  sitting  in  the 
western  district  of  Washington,  northern  division,  at  Seattle, 
Washington,  where  said  cause  has  been  transferred  for  hear- 
ing on  the  30th  day  of  November,  1914,  at  the  hour  of  two 
o'clock  in  the  afternoon  of  said  day,  then  and  there  to  show 
cause,  if  any  they  have,  why  they  and  each  of  them  should 
not  be  enjoined  and  restrained  in  the  manner  hereinbefore 
stated. 

It  is  further  ordered  by  the  court  that  a  copy  of  this  order 
be  served  upon  said  defendants  and  each  of  them  forthwith. 

Done  in  open  court  this  25th  day  of  November,  1914. 
(Signed)        Jeremiah  Neterer, 

Judge. 


No.  975. 

Order  Allowing  Temporary  Injunction  with  Exceptions 
Thereto,  under  Judicial  Code,  Section  266. 

[Caption.] 

The  application  of  the  plaintiff  for  a  temporary  injunction 
in  the  above  entitled  suit  having  been  duly  brought  on  for 
hearing  on  the   17th  day  of  April,    1915,  before  Honorable 


INJUNCTIONS.  1459 

William  B.  Gilbert,  circuit  judg-e,  and  Honorable  Frank  H, 
Rudkin  and  Honorable  Jeremiah  Neterer,  district  judges, 
pursuant  to  notice  duly  given,  and  the  judges  having  con- 
curred in  an  opinion,  duly  filed,  holding  that  so  much  of  the 
order  of  the  Public  Service  Commission  of  the  state  of  Wash- 
ington, as  required  the  through  routing  of  cars  upon  the  Bal- 
lard Beach,  Alki  Point  and  Fauntleroy  Park  lines  should 
not  be  enjoined,  and  the  judges  having  also  in  such  opinion 
concurred  in  holding  that  so  much  of  the  order  of  the  Public 
Service  Commission  of  the  state  of  Washington  as  required 
the  plaintiff  to  furnish  a  seat  to  every  passenger  desiring  to 
travel  upon  the  Fauntleroy  Park  line  and  the  Alki  Point  line 
is  unreasonable  and  void,  and  to  that  extent  the  enforcement 
of  such  order  should  be  enjoined,  it  is 

Ordered  and  adjudged  that  a  temporary  injunction  be  and 
the  same  is  hereby  to  such  extent  granted,  and  the  clerk  of 
this  court  is  hereby  ordered  to  issue  the  same,  restraining  the 
defendants,  Charles  A.  Reynolds,  Frank  R.  Spinning  and  Ar- 
thur A.  Lewis,  constituting  the  Public  Service  Commission 
of  the  state  of  Washington,  and  W.  V.  Tanner,  as  attorney 
general  of  the  state  of  Washington,  from  enforcing  and  from 
attempting  to  enforce  so  much  of  the  order  of  the  Public 
Service  Commission  of  the  state  of  Washington  made  on  the 
24th  day  of  March,  1915,  as  requires  Puget  Sound  Traction, 
Light  &  Power  Company  to  furnish  to  all  persons  desiring 
to  travel  upon  its  street  railway  lines  known  as  Alki  Point 
line  and  Fauntleroy  Park  line  with  seats,  and  from  taking 
any  action  against  the  plaintiff  for  non-compliance  with  that 
portion  of  such  order;  and  such  temporary  injunction  shall 
remain  in  force  until  the  final  hearing  and  determination  of 
the  above  entitled  suit. 

It  is  further  ordered  that  in  all  other  respects  the  applica- 
tion of  the  plaintiff  for  a  temporary  injunction  be  and  the 
same  is  hereby  denied.  M.  O., 

(Date.)  Judge. 


1460  SUITS   IN    EQUITY. 

The  plaintiff  excepts  to  so  much  of  the  above  order  as 
denies  the  injunction  and  the  defendants  except  to  so  much 
of  the  above  order  as  grants  an  injunction. 

O.  K.  as  to  form.  W.  V.  Tanner, 

Attorney  General. 

Taken  from  same  case  as  No.  972. 


No.  976. 

Order  by  Three  Judges  Enjoining  State  Officials  under  Judi- 
cial Code,  Section  266.(1) 
[Caption.] 

In  the  above  entitled  cause  application  having  been  here- 
tofore made  and  presented  to  the  Honorable  H.  C.  Niles, 
United  States  District  Judge,  for  the  issuance  of  a  prelimi- 
nary injunction  as  prayed  for  in  the  bill  in  said  cause,  and 
the  said  Honorable  H.  C.  Niles  having  heretofore  called  to 
his  assistance  Honorable  Don  A.  Pardee  and  Richard  Walker, 
United  States  Circuit  Judges,  to  hear  and  to  determine  the 
said  application,  and  the  said  application  having  been  set 
down  for  hearing  at  New  Orleans  on  the  27th  day  of  Octo- 
ber, 1914,  and  due  notice  thereof  having  been  given  to  the 
parties  in  said  cause,  the  said  application  came  on  for  hearing 
and  determination  at  the  time  and  place  stated  in  such  notice, 
and,  after  considering  the  pleadings  in  the  case  and  the  evi- 
dence offered  on  said  hearing  by  the  parties  to  the  cause. 

It  is  ordered,  adjudged  and  decreed  that  a  preliminary  in- 
junction issue  as  prayed  for  in  said  bill. 

Don  a.  Pardee, 

Circuit  Judge. 
R.  W.  Walker, 

U.  S.  Circuit  Judge. 
H.  C.  Niles, 

U.  S.  District  Judge. 
Taken  from  M.  &  O.  Ry.  v.  Miss.  Ry.  (Com.,  244  U.  S.  388. 

(1)  A.  Federal  Statute  Regulating  Injunction.  Section  266  of  the 
Federal  Judicial  Code  requires  that  no  interlocutory  injunction  shall 
be  granted  to  restrain  the  enforcement  of  a  state  statute  by  restraining 
the  action  of  a  state  officer  in  the  execution  thereof  or  of  an  order 


INJUNCTIONS.  1461 

made  by  a  board  or  commission,  except  upon  a  hearing  by  three 
judges. 

Above  proceedings  illustrate  the  manner  in  which  the  judges  are 
chosen  by  the  district  judge  and  the  choice  of  the  place  of  hearing, 
in  a  case  where  it  is  sought  to  enjoin  a  state  railway  commission  and 
the  state  attorney-general. 

The  province  of  the  three  judges  is  solely  to  determine  whether 
the  injunction  should  be  granted,  not  to  pass  on  the  merits  of  the 
litigation.     Brown  Drug  Co.  v.  U.  S.,  235  Fed.  503. 

The  statute  prescribes  all  convenient  haste  for  the  decision  upon 
the  injunction,  and  safeguards  the  rights  of  the  defendant  by  requiring 
notice  for  at  least  five  days. 

Note  that  application  for  injunction  must  be  based  on  the  alleged 
unconstitutionality  of  the  statute  in  question,  and  this  means,  of  course, 
conflict  with  the  United  States  constitution. 

This  section  receives  careful  consideration  in  Ex  parte  Metro- 
politan Water  Company,  220  U.  S.  539  at  p.  544,  Chief  Justice  White 
speaking  for  the  court. 

B.  Function  of  the  Three  Judges.  Brown  Drug  Co.  v.  U.  S. 
235  Fed.  603,  was  a  suit  against  the  United  States,  the  Interstate  Com- 
merce Commission,  the  American  Express  Company,  and  others,  seek- 
ing to  enjoin  the  putting  into  effect  of  certain  express  rates  in  South 
Dakota. 

The  proceeding  here  was  carried  on  under  a  federal  statute  of 
Oct.  22,  1913,  38  Stat.  L.  208,  requiring  a  court  of  three  judges,  when 
an  injunction  to  restrain  the  enforcement  of  an  order  of  the  Interstate 
Commerce  Commission  should  be  asked,  the  language  being  the  same 
as  that  in  Judicial  Code,  Sec.  266. 

In  this  case  the  court  says  at  page  605:  "A  motion  is  made  by  the 
express  companies  to  dismiss  the  case.  This  motion  in  my  judg- 
ment could  not  be  heard  before  the  three  judges  now  sitting.  The 
three  judges  are  convened  to  hear  the  application  for  a  temporary 
writ  of  injunction,  not  to  determine  whether  the  case  should  be  dis- 
missed upon  its  merits.  If  the  motion  had  been  filed  before  the  appli- 
cation had  been  made  there  would  be  no  pretense  that  these  three 
judges  should  sit  to  hear  that  question."     (N.   D.   of  Iowa.) 

In  Raich  v.  Truax,  219  Fed.  273  (D.  Arizona),  application  was  made 
for  temporary  injunction  under  Judicial  Code,  Sec.  266  and  the  court 
composed  of  three  judges  granted  the  application,  but  at  the  same 
time  acted  upon  the  motion  to  dismiss,  denying  it,  and  on  appeal  the 
U.  S.  supreme  court  in  239  U.  S.  33  at  p.  Z7  says:  "The  application 
for  an  'interlocutory  injunction  and  the  motion  to  dismiss  were  then 
heard  before  three  judges  as  required  by  Sec.  266  of  the  Judicial  Code." 

But  in  Crane  v.  Johnson,  233  Fed.  334,  Ross,  judge,  says,  where 
motion  for  preliminary  injunction  under  Ser.  266  is  under  consideration 
by  the  three  judges:  "We  do  not  understand  that,  upon  such  an 
application  as  the  present,  the  court,  composed,  under  statutory  re- 
quirement, of  the  judge  of  the  district  court,  of  another  district  judge 
and  a  circuit  judge,  is  called  upon,  if,  indeed,  authorized,  to  decide 


1462  SUITS    IN    EQUITY. 

the  merits  of  the  suits."  (Apparently  to  decide  a  motion  to  dismiss, 
as  in  Raich  v.  Truax,  above,  is  to  decide  upon  the  merits  of  the  suit.) 

Eastern  Texas  Ry.  Co.  v.  Railroad  Commission  of  Texas,  242  Fed. 
300,  on  motion  for  preliminary  injunction  under  Sec.  266,  before  three 
judges,  at  page  305  the  court  says:  "Certainly  at  this  time  we  are  not 
called  upon  to  decide  upon  the  merits  of  the  case.  On  the  hearing 
before  this  special  tribunal,  it  seems  that  we  are  not  called  upon  to  try 
or  decide  any  of  the  questions  presented  upon  the  pleadings  further 
than  to  determine  if  the  bill  itself  as  amended  presents  a  case  for 
equitable  relief.  On  this  issue  enough  has  been  stated  to  show  that 
the  complainants  are  entitled  to  such  relief,  and  we  find  on  the  facts 
proved  that  the  protection  of  the  complainants  requires  the  issuance 
of  a  temporary  injunction." 

In  Kansas  City,  etc.,  Ry.  Co.  v.  Barker,  242  Fed.  310,  a  similar  case, 
the  court  says  at  page  315:  "We  recognize  that  this  is  not  a  hearing 
on  the  merits.  The  pleadings  have  not  been  made  up,  nor  has  testi- 
mony been  taken.  However,  the  situation  presented,  in  our  opinion, 
calls  for  the  issuance  of  a  temporary  injunction." 

In  Hebe  Co.  v.  Calvert,  246  Fed.  711,  a  similar  case,  injunctive  relief 
having  been  asked  for,  the  court  of  three  judges  heard  the  case  on 
its  merits,  the  court  saying  at  page  714:  "Injunctive  relief  is  sought 
against  the  enforcement  by  the  state  officers  of  the  pertinent 
sections  of  the  state  statute,  on  the  ground  of  their  unconstitution- 
ality. The  presence  of  three  judges  is  therefore  necessary  to  a  hearing 
of  the  case.  (Citing  Sec.  266.)  The  issues  having  been  made  up,  the 
case  was  heard  on  its  merits.  It  is  now  for  decision  with  reference 
to  the  Ohio  statutes." 

The  court  dismissed  the  bill. 

In  L.  &  N.  Ry.  v.  Garrett,  231  U.  S.  298,  the  court  says  at  page  303: 
"Because  of  the  federal  questions  raised  by  the  bill  the  circuit  court 
had  jurisdiction  and  was  authorized  to  determine  all  the  questions 
in  the  case,  local  as  well  as  federal.  A  similar  rule  must  be  deemed 
to  govern  the  application  for  preliminary  injunction  under  the  statute 
which  requires  a  hearing  before  three  judges,  and  authorizes  an  appeal 
to  this  court.  This  statute  applies  to  cases  in  which  the  preliminary 
injunction  is  sought  in  order  to  restrain  the  enforcement  of  a  state 
enactment  upon  the  ground  of  its  unconstitutionality.  The  reference, 
undoubtedly,  is  to  an  asserted  conflict  with  the  federal  constitution, 
and  the  question  of  unconstitutionality,  in  this  sense,  must  be  a  sub- 
stantial one.  But,  where  such  a  question  is  presented,  the  application 
is  within  the  provision,  and  this  being  so,  it  can  not  be  supposed  that 
it  was  the  intention  of  congress  to  compel  the  exclusion  of  other 
grounds  and  thus  to  require  a  separate  motion  for  preliminary  injunc- 
tion, and  a  separate  hearing  and  appeal,  with  respect  to  the  local 
questions  which  are  involved  in  the  case  and  would  properly  be  the 
subject  of  consideration  in  determining  the  propriety  of  granting  an 
injunction  pending  suit.  The  local  questions  arising  under  this  state 
constitution  and  statutes  were  therefore  before  the  circuit  court  and 
the  appeal  brings  them  here." 


INJUNCTIONS.  1463 

In  this  case  the  motion  for  preliminary  injunction  was  heard  in 
the  court  below  on  bill  and  affidavits  and  wa?  denied.  This  rule  posit- 
ing jurisdiction  in  the  supreme  court  to  go  into  the  whole  case  on 
appeal  asserts  the  jurisdiction  of  the  lower  court  over  the  entire  case 
and  was  recognized  and  acted  upon  in  Van  Dyke  v.  Geary,  244  U.  S.  39. 

In  both  of  these  cases  the  supreme  court  merely  affirmed  the 
order  of  the  lower  court  on  the  application  for  injunction. 

It  appears  from  the  foregoing  that  the  tendency  among  the  dis- 
trict courts  of  three  judges  constituted  under  Section  266  is  to  go 
into  the  merits  and  in  a  proper  case  to  dismiss  the  bill,  and  the  judges 
do  not  therefore  confine  their  action  merely  to  awarding  or  denying 
the  injunction  asked;  and  this  attitude  finds  support  in  the  controlling 
principles  laid  down  by  the  supreme  court. 


No.  977. 

Order  Denying  Temporary  Injunction  Prayed  under  Judicial 
Code,  Section  266. 

[Caption.] 

This  cause  coming  on  to  be  heard  on  the  application  of 
the  plaintiff  herein  for  a  temporary  injunction,  as  prayed 
for  in  the  bill  of  complaint,  pending  final  hearing,  and  having 
been  heard  before  the  Hon.  D.  D.  Shelby,  circuit  judge,  the 
Hons.  H.  C.  Niles  and  W.  I.  Grubb,  district  judges,  sitting 
as  the  said  district  court,  and  in  pursuance  of  Section  266  of 
the  judicial  code,  and  having  been  submitted  upon  the  origi- 
nal bill  and  answer  thereto  and  the  affidavits  filed  in  the  cause 
by  the  respective  parties,  and  upon  oral  arguments  and  briefs, 
and  the  court  being  of  the  opinion  that  the  plaintiff  is  not 
entitled  to  the  relief  applied  for  by  him, 

It  is  ordered,  adjudged  and  decreed  that  the  application 
of  the  plaintiff  on  injunction  pendente  lite  be  and  it  is  hereby 
denied  and  that  the  plaintiff  be  and  he  is  hereby  taxed  with 
the  cost  of  the  application. 

It  is  further  ordered  that  this  decree  shall  become  effec- 
tive upon  the  filing  of  the  same  in  court. 

Given  this  10th  day  of  November,   1913. 

D.  D.  Shelby, 

Circuit  Judge  United  States. 
H.  C.  Niles,  District  Judge. 
W.   I.   Grubb,   District  Judge. 


1464  SUITS   IN    EQUITY. 

No.  978. 

Order  Denying  Application  for  Injunction  under  Judicial 
Code,  Section  266,  and  Instructing  to  Proceed  in  Equity  as 
Usual  (Another  Form). 

[Caption.] 

This  cause  comes  on  to  be  heard  at  New  Orleans,  in  Louis- 
iana, on  the  24th  day  of  November,  1915,  before  the  under- 
signed, a  court  convened  by  virtue  of  the  Act  of  Congress 
approved  March  3d,  1914,  relating  to  the  hearing,  trial  and 
determination  of  questions  involving  the  validity  of  state 
legislation,  alleged  to  be  in  violation  of  the  Constitution  of 
the  United  States;  and  the  plaintiffs  in  said  cause  having 
therein  prayed  for  a  preliminary  injunction  to  temporarily 
restrain  the  officials  of  the  state  of  Florida  therein  named, 
from  the  enforcement  of  the  Naval  Stores  Inspection  Stat- 
utes of  the  state  of  Florida,  enacted  by  the  legislature  of  said 
state  and  approved  by  the  governor  thereof,  on  the  5th  day 
of  June,  1915,  and  the  application  having  been  duly  assigned 
for  hearing,  and  the  solicitors  for  the  parties  having  been 
duly  heard  and  the  Court  having  taken  time  for  advisement, 
it  is  now,  after  due  consideration, 

Ordered,  adjudged  and  decreed  that  the  said  application 
for  preliminary  injunction  be  and  the  same  is  hereby  denied. 

Ordered  further  that  said  cause  proceed  as  usual  in  equity. 

A.  B., 
Circuit  Judge. 
C.  D.  and  E.  F., 
District  Judges. 


No.  979. 

Order  Denying  Injunction  Pendente  Lite  and  Granting  Motion 
to  Dismiss  Bill  of  Complaint,  under  Judicial  Code,  Sec- 
tion 266. 

[Caption.] 

This   cause   coming  on   regularly  to  be  heard  before  the 
Hon.  W.  B.   Gilbert,  United  States  circuit  judge,  Hon.  Ed- 


INJUNCTIONS.  1465 

ward  E.  Cushman  and  Hon.  Jeremiah  Neterer,  United  States 
district  judges,  at  the  city  of  Seattle,  Washington,  upon  the 
application  of  the  complainants  for  a  temporary  injunction 
herein,  and  upon  the  motion  of  the  defendants  to  dismiss 
said  bill  of  complaint ;  the  complainants  being  represented  by 
their  solicitors,  Messrs.  Cannon  &  Ferris,  and  the  defendants 
being  represented  by  their  solicitors,  W.  V.  Tanner,  attorney 
general,  and  George  H.  Crandall,  prosecuting  attorney,  and 
the  court  having  heard  the  arguments  of  counsel  and  being 
fully  advised  in  the  premises,  and  opinion  and  dissenting  opin- 
ion herein  having  been  filed. 

Now,  therefore,  in  accordance  with  said  opinion,  and  on 
motion  of  the  solicitors  for  the  defendants,  it  is  ordered  that 
the  application  for  a  temporary  injunction  be,  and  the  same 
hereby  is,  denied. 

It  is  further  ordered  that  said  motions  of  defendants  herein 
for  dismissing  said  bill  of  complaint  be,  and  the  same  hereby 
are,  granted,  and  that  the  bill  of  complaint  be,  and  the  same 
hereby  is,  dismissed,  to  which  complainants  and  each  of  them 
except,  and  their  exceptions  are  hereby  duly  allowed. 

Done  in  open  court  this  14th  day  of  September,  1915. 
(Signed)       Jeremiah  Neterer, 

Judge. 

(1)  Here  the  court  of  three  judges  passed  upon  the  motion  to 
dismiss  also,  and  it  is  noted  that  the  order  is  signed  only  by  the 
district  judge  before  whom  the  case  was  filed. 

In  this  case  the  court  followed  its  ruling  in  Wiseman  v.  Tanner,  221 
Fed.  694,  raising  the  same  question  before  the  same  judges. 

In  Adams  v.  Tanner,  244  U.  S.  590,  the  court  reverses  the  lower  court 
but  no  question  is  anywhere  raised  about  the  jurisdiction  of  the  three 
judges  to  decide  the  motion  to  dismiss. 


No.  980. 

Preliminary  Injunction  Suspending  Enforcement  of  an  Order 
of  the  Interstate  Commerce  Commission(l)   Prescribing 
a  Bill  of  Lading. 
At  a  stated  term  of  the  United  States  District  Court  for 

the  Southern  District  of  New  York,  held  in  the  United  States 


:i466 


SUITS    IN    EQUITY. 


court  house  and  post  office  building,  borough  of  Manhattan, 
on  the  2d  day  of  August,  1919. 

Present:  Hon.  Henry  G.  Ward,  Circuit  Judge;  Hon. 
Learned  Hand,  District  Judge;  Hon.  Julius  M.  Mayer,  Dis- 
trict Judge.     In  equity,  E — 16 — 149. 

Alaska  Steamship  Company,  Central  of  Georgia  Railway 
Company,  Clyde  Steamship  Company,  Delaware,  Lacka- 
wanna &  Western  Railroad  Company,  Delaware  and  Hud- 
son Company,  James  H.  Hustis  as  temporary  receiver 
of  Boston  and  Maine  Railroad  Company,  Illinois  Cen- 
tral Railroad  Company,  Lehigh  Valley  Railroad  Com- 
pany, Mallory  Steamship  Company,  Merchants  &  Miners 
Transportation  Company,  The  New  York  Central  Rail- 
road Company,  New  York,  New  Haven  &  Hartford 
Railroad  Company,  Norfolk  &  Western  Railroad  Com- 
pany, Ocean  Steamship  Company  of  Savannah,  Old  Do- 
minion Steamship  Company,  Pennsylvania  Railroad 
Company,  Rutland  Railroad  Company,  Southern  Pacific 
Company,  Southern  Steamship  Company,  Union  Pacific 
Railroad  Company,  Yazoo  and  Mississippi  Valley  Rail- 
road Company  and  others. 

Petitioners, 

Against 
United  States  of  America,  Respondent, 

and 

Interstate  Commerce  Commission, 

Intervening  Respondent. 

This  cause  came  on  to  be  heard  at  this  term  and  was  argued 
by  counsel,  and  thereupon,  upon  consideration  thereof,  it  was 
ordered,  adjudged  and  decreed  as  follows,  viz. : 

I.  That  the  motion  of  the  United  States  of  America,  re- 
'spondent,  to  dismiss  the  petition  be  and  the  same  is  hereby 
denied. 


INJUNCTIONS.  1467 

II.  That  the  motion  of  the  Interstate  Commerce  Commis- 
sion, intervening  respondent,  to  dismiss  the  petition  be  and 
the  same  is  hereby  denied. 

III.  That  the  application  of  the  petitioners  for  a  prelimi- 
nary injunction  be  and  the  same  is  hereby  granted,  as  prayed 
for  in  the  petition,  and  that  a  preliminary  injunction  be  and 
the  same  is  hereby  issued  out  of  this  court,  restraining  and 
suspending  enforcement  of  the  order  of  the  Interstate  Com- 
merce Commission,  No.  4844,  "In  the  Matter  of  Bills  of  Lad- 
ing," dated  April  14,  1919,  and  entered  at  a  general  session  of 
the  Interstate  Commerce  Commission  held  at  its  office  in 
Washington,  D.  C,  April  14,  1919,  prescribing  two  certain 
forms  of  bills  of  lading  to  be  used  by  the  director  general  of 
railroads  and  certain  carriers,  subject  to  the  act  to  regulate 
commerce,  until  the  final  determination  of  this  cause,  and  that 
the  respondents  and  each  of  them,  their  officers,  members,  at- 
torneys, agents  and  employes,  and  any  and  all  persons  whom- 
soever, be  and  they  are  hereby  enjoined  and  restrained  from 
enforcing  or  in  any  manner  attempting  to  enforce  or  carry 
out  said  order,  or  the  terms  thereof,  until  further  order  of 
this  court.  H.  G.  Ward,  U.  S.  C.  J. 

Julius  M.  Mayer,  U.  S.  D.  J. 
A  True  Copy : 

Alex.  Gilchrist,  Jr.,  Clerk. 
[Seal.] 

Taken  from  Alaska  Steamship  Co.,  et  al.  v.  U.  S.  and  J.  C.  Com., . 
S.  D.  N.  Y. 

(1)  See  Judicial  Code,  Sec.  207,  conferring  jurisdiction  upon  the 
commerce  court  over  cases  brought  to  enjoin,  etc.,  an  order  of  the 
Interstate  Commerce  Commission.  Upon  the  abolition  of  the  com- 
merce court  this  jurisdiction  was  placed  in  the  district  court,  38  Stat. 
L.  219,  and  an  application  for  interlocutory  injunction  must  be  pre- 
sented to  a  district  or  circuit  judge,  and  heard  and  determined  by 
three  judges,   similar  to  cases  arising  under  Judicial   Code,   Sec.  266. 

Notice  must  be  served  upon  the  Interstate  Commerce  Commis- 
sion and  the  attorney-general  of  the  United  States.  38  Stat.  L.  220. 
See  also  Judicial  Code,  Sees.  208,  209,  210,  and  212.  the  latter  permitting 
the  Interstate  Commerce  Commission  to  appear  as  of  right  by  its 
own  attorneys  in  such  proceedings. 

In  this  connection  consult  also  general  provisions  of  the  Clayton 
Act,  October  15,  1914,  38  Stat.  L.  737.  738,  Sees.  17,  18.  19  and  20. 


1468       ■  SUITS    IN    EQUITY. 

No.  981. 

Bill  Requesting  Injunction  Against  United  Mine  Workers  of 
America  to  Prevent  a  Strike. 

[Caption.] 

The  United  States  of  America,  by  its  attorney  for  the  dis- 
trict of  Indiana,  acting  under  the  direction  of  the  attorney 
general,  brings  this  bill  of  complaint  against  the  following 
defendants,  both  as  individuals  and  in  their  representative  ca- 
pacities as  officers  of  the  International  Union  United  Mine 
Workers  of  America,  as  indicated  in  the  following  list,  which 
also  shows  the  citizenship  and  residence  of  the  defendants : 
[Here  follow  names  and  residences.] 

This  bill  of  complaint  is  brought  to  restrain  the  said  defend- 
ants, and  other  persons  whose  names  are  unknown  to  plaintiff, 
from  further  engaging  in  and  carrying  out  a  conspiracy,  com- 
bination, agreement  and  arrangement  (a)  to  restrict  the  sup- 
ply and  distribution  throughout  the  United  States  of  a  neces- 
sary within  the  meaning  of  the  act  of  Congress  of  August  10, 
1917,  entitled  "An  act  to  provide  further  for  the  national 
security  and  defense  by  encouraging  the  production,  conserv- 
ing the  supply  and  controlling  the  distribution  of  food  prod- 
ucts and  fuel" — namely,  bituminous  coal — and  (b)  to  restrict 
the  distribution  of  such  coal  in  the  interstate  commerce 
throughout  the  United  States,  and  (c)  to  restrict  the  operation 
by  the  United  States  of  the  railroads  of  the  country  by  means 
of  the  consumption  of  such  coal. 

Bituminous  coal  is  the  most  important  fuel  consumed  in  the 
United  States.  It  is  used  throughout  the  United  States  in  the 
generation  of  steam  and  electricity  for  motive  power;  in  the 
operation  of  railroads,  steamboats,  lighting  and  power  plants, 
street-car  lines,  factories  and  industrial  plants  of  all  kinds, 
and  in  the  generation  of  heat  in  hotels,  office  buildings,  apart- 
ment houses  and  private  dwellings  for  the  purpose  of  protec- 
tion against  cold.  It  is  mined  and  produced  from  the  ground 
to  the  extent  of  approximately  5CX),000,000  net  tons  annually, 
in  the  aggregate,  in  the  states  of  Alabama,  Arkansas,  Colo- 
rado,  Georgia,   Illinois,   Indiana,  .  Iowa,    Kansas,    Kentucky, 


INJUNCTIONS,  1469 

Maryland,  Michigan,  Missouri,  Montana,  New  Mexico,  North 
Dakota,  Ohio,  Oklahoma,  Pennsylvania,  Tennessee,  Texas, 
Utah,  Virginia,  Washington,  West  Virginia  and  Wyoming; 
in  varying  amounts,  however,  the  largest  production  being  in 
the  states  of  Pennsylvania.  Illinois  and  West  Virginia.  It  is 
mined  from  the  ground  by  human  labor  in  the  aforesaid  states, 
particularly  in  the  three  last-mentioned  states,  and  is  shipped 
and  distributed  from  the  mines,  in  the  interstate  commerce, 
into  all  the  states  of  the  United  States  for  the  above-described 
uses  in  the  generation  of  heat  and  power,  including  the  opera- 
tion of  the  railroads  of  the  country. 

Approximately  615,000  miners  and  mine  workers  are  en- 
gaged in  the  United  States  in  the  production  of  bituminous 
coal,  of  whom  upwards  of  400,000  are  members  of  local  trade 
unions  and  of  district  unions  of  the  International  Union  Uni- 
ted Mine  Workers  of  America,  an  organization  of  all  the 
members  of  the  aforesaid  unions  and  of  certain  local  and  dis- 
trict unions  of  bituminous  coal  miners  and  mine  workers  in 
Canada. 

The  said  act  of  Congress  of  August  10,  1917,  as  originally 
enacted  on  that  date  and  as  amended  by  the  act  of  Congress 
of  October  22,  1919,  entitled  "An  act  to  amend  an  act  entitled 
'An  act  to  provide  further  for  the  national  security  and  defense 
by  encouraging  the  production,  conserving  the  supply  and  con- 
trolling the  distribution  of  food  products  and  fuel,'  approved 
August  10,  1917,  and  to  regulate  rents  in  the  District  of  Co- 
lumbia," provides  as  follows : 

"That  by  reason  of  the  existence  of  a  state  of  war,  it  is 
essential  to  the  national  security  and  defense,  for  the  success- 
ful prosecution  of  the  war,  and  for  the  support  and  mainte- 
nance of  the  army  and  navy,  to  assure  an  adequate  supply  and 
equitable  distribution,  and  to  facilitate  the  movement,  of  foods, 
feeds,  fuel,  including  fuel  oil  and  natural  gas,  and  fertilizer 
and  fertilizer  ingredients,  tools,  utensils,  implements,  ma- 
chinery, and  equipment  required  for  the  actual  production  of 

foods,  feeds  and  fuel,  hereafter  in  this  act  called  necessaries. 
4f     *     *" 


1470  SUITS   IN   EQUITY. 

And  as  follows : 

"Sec.  4.  That  it  is  hereby  made  unlawful  for  any  person 
to  conspire,  combine,  agree  or  arrange  with  any  other  person 
(a)  to  limit  the  facihties  for  transporting,  producing,  har- 
vesting, manufacturing;  (b)  to  restrict  the  supply  of  any 
necessaries:  (c)  to  restrict  distribution  of  any  necessaries," 
etc. 

And  as  follows : 

"Sec.  24.  That  the  provision  of  this  act  shall  cease  to  be 
in  efifect  when  the  existing  state  of  war  between  the  United 
States  and  Germany  shall  have  terminated,  and  the  fact  and 
date  of  such  termination  shall  be  ascertained  and  proclaimed 
by  the  President." 

For  the  purpose  of  carrying  out  other  provisions  of  the 
said  act  of  Congress  of  August  10,  1917,  there  was  sub- 
sequently established  by  the  President  of  the  United  States 
and  recognized  by  presidential  proclamation  an  administra- 
tive body  known  as  the  United  States  Fuel  Administration, 
at  Washington  in  the  District  of  Columbia,  which  body  pur- 
suant to  the  authority  of  such  proclamation  exercised  a  large 
measure  of  control  and  supervision  over  the  production  and 
distribution  of  bituminous  coal  throughout  the  United  States. 

With  the  official  approval  and  sanction  of  the  United 
States  Fuel  Administration  there  was  entered  into  at  Wash- 
ington, in  the  District  of  Columbia,  on  October  6,  1917,  a 
supplemental  agreement  (the  so-called  Washington  wage 
agreement)  between  the  operators  and  the  union  miners  and 
mine  workers  of  the  so-called  central  competitive  fields,  com- 
posed of  western  Pennsylvania,  Ohio,  Indiana  and  Illinois, 
for  the  increase  in  the  production  of  bituminous  coal  and  an 
increase  in  wages  to  the  miners  and  mine  workers  over  the 
then  existing  scale  of  compensation.  The  said  agreement 
provided  for  an  advance  of  10  cents  per  ton  to  miners,  and 
for  advances  ranging  from  75  cents  to  $1.40  per  day  to 
laborers,  and  for  an  advance  of  15  per  cent,  for  yardage  and 
dead  work,  resulting  in  an  increase  to  miners  of  50  per  cent. 


INJUNCTIONS.  1471 

of  the  best-paid  laborers  of  78  per  cent,  over  the  wages  of 
April  1,  1914.  The  said  agreement  also  provided  for  the 
establishment  of  automatic  penalties  to  be  imposed  upon 
miners  for  working  less  than  eight  hours  per  day  as  stipu- 
lated in  the  then  existing  wage  agreements,  in  order  to  avoid 
a  shortage  of  coal — it  being  considered  that  no  such  short- 
age would  develop  if  the  miners  then  at  work  would  work 
for  eight  hours  per  day  during  five  days  of  the  week.  This 
agreement  also  contained  the  following  provision : 

"Subject  to  the  next  biennial  convention  of  the  United 
Mine  Workers  of  America,  the  mine  workers'  representatives 
agree  that  the  present  contract  be  extended  during  the  con- 
tinuance of  war,  and  not  to  exceed  two  years  from  April  1, 
1918." 

Subsequently,  from  January  15,  1918,  to  January  26,  1918, 
there  was  held  at  Indianapolis,  Indiana,  the  twenty-sixth 
consecutive  and  third  biennial  convention  of  the  International 
Union  United  Mine  Workers  of  America,  which  convention, 
on  January  19,  1918,  duly  ratified  and  approved  the  said 
Washington  wage  agreement  of  October  6,  1917. 

From  September  9,  1919,  until  September  23,  1919,  there 
was  held  at  Cleveland,  Ohio,  the  twenty-seventh  successive 
constitutional  and  fourth  biennial  convention  of  the  Inter- 
national Union  United  Mine  Workers  of  America,  consisting 
in  a  meeting  of  delegates  selected  to  represent  the  various 
local  and  district  unions,  together  with  and  under  the  auspices 
of  the  officers  of  the  International  Union  United  Mine  Work- 
ers of  America,  comprising  the  above  specified  defendants. 
The  principal  subject  considered  and  dealt  with  by  the  said 
convention  was  the  formulation  of  new  and  further  wage 
demands  which  the  miners  were  to  place  before  the  operators 
of  the  central  competitive  field  at  a  joint  conference  with 
such  operators  at  Buffalo  on  September  25,  1919. 

At  the  said  convention  the  vice-president  and  acting  presi- 
dent of  the  International  Union  United  Mine  Workers  of 
America,  in  the  absence  of  the  president,  read  a  report  in 


1472  SUITS    IN    EQUITY. 

which  he  recommended  that  this  convention  take  action  de- 
claring the  Washington  wage  agreement  ofificially  terminated 
at  a  date  not  later  than  November  1st;  that  the  automatic 
penalty  clause  of  the  Washington  wage  agreement  be  elimi- 
nated in  the  next  contract,  and  that  if  a  basic  agreement  for 
the  central  competitive  field  should  not  be  negotiated  by 
November  1st  there  should  be  a  complete  cessation  of  mining 
operations  by  all  the  members  of  the  United  Mine  Workers 
of  America. 

Subsequently,  under  date  of  September  22,  1919,  the  de- 
fendants constituting  the  so-called  scale  committee  submitted 
a  report  to  the  said  convention  recommending,  amongst  other 
things,  that  the  convention  demand  a  60  per  cent,  increase 
applicable  to  all  classifications  of  day  labor  and  to  all  ton- 
iiage,  yardage  and  dead-work  rates  throughout  the  central 
competitive  field,  and  that  all  new  wage  agreements  replacing 
existing  agreements  should  be  based  on  a  six-hour  work  day, 
from  bank  to  bank,  five  days  per  week;  the  abolition  of  all 
automatic  penalty  clauses;  that  all  contracts  in  the  bitumi- 
nous field  should  be  declared  to  expire  on  November  1,  1919; 
that  no  agreement  for  the  central  competitive  field  should  be 
concluded  until  the  convention  should  have  been  reconvened 
at  Indianapolis,  Indiana,"  on  a  date  to  be  designated  by  the 
resident  international  officers  and  until  it  should  have  ratified 
such  contract;  and  that — 

"In  the  event  a  satisfactory  wage  agreement  is  not  secured 
for  the  central  competitive  field  before  November  1,  1919,  to 
replace  the  one  now  in  effect,  that  the  international  officials 
be  authorized  to  and  are  hereby  instructed  to  call  a  general 
strike  of  all  bituminous  miners  and  mine  workers  through- 
out the  United  States,  the  same  to  become  effective  Novem- 
ber 1,  1919." 

The  acting  president  thereupon  explained  to  the  conven- 
tion that  if  the  general  strike  should  be  called  for  November 
1,  1919,  the  convention  would  not  be  reconvened,  and  that 
the  international  officials  were  clothed  with  full  authority  to 


INJUNCTIONS.  1473 

handle  the  strike,  whereupon  the  report  of  the  scale  commit- 
tee was  adopted  by  the  convention  and  the  convention  was 
declared  closed. 

Subsequently,  at  Buffalo,  on  September  25th,  certain  of  the 
delegates  to  the  above-mentioned  convention  who  had  been 
designated  and  the  members  of  the  said  scale  committee  par- 
ticipated in  a  joint  wage  conference  with  the  operators  of  the 
bituminous  mines  of  the  central  field.  After  prolonged  nego- 
tiations a  motion  was  made  in  behalf  of  the  miners  and  wine 
workers  that  their  demands  be  adopted  as  a  whole,  including 
the  60  per  cent,  wage  increase,  and  a  motion  was  made  in 
behalf  of  the  operators  to  continue  the  existing  agreement  in 
effect  until  March  31,  1920.  Both  motions  were  defeated. 
Thereupon  a  sub-committee  of  representatives  of  both  the 
miners  and  mine  workers  and  of  the  operators  was  appointed 
to  conduct  negotiations  and  adjourned  to  meet  in  Philadel- 
phia on  Thursday,  October  9,  1919.  The  representatives  of 
the  miners  and  mine  workers  were  then  and  there  unsuccess- 
ful in  having  their  demands  granted,  and  the  sub-committee 
adjourned  without  having  reached  an  agreement. 

Subsequently,  at  Indianapolis,  Indiana,  within  this  district, 
the  defendants,  being  officers  of  the  International  Union 
United  Mine  Workers  of  America,  and  other  persons  whose 
names  are  unknown  to  plaintiff,  in  an  effort  to  enforce  and 
coerce  the  operators  of  bituminous  mines  in  the  central  com- 
petitive district  to  grant  the  above  enumerated  demands  of 
the  officers  and  delegates  of  the  said  union,  including  the 
demand  for  a  60  per  cent,  increase  in  wages  for  the  miners 
and  mine  workers  in  the  central  competitive  field  who  are 
members  of  the  said  union,  in  violation  of  the  aforesaid  act 
of  Congress  of  August  10,  1917,  and  against  the  public 
policy  of  the  United  States  of  America,  unlawfully  and 
knowingly  conspired,  combined,  agreed  and  arranged  to- 
gether to  restrict  the  supply  and  distribution  and  to  limit  the 
facilities  for  transporting  and  supplying  bituminous  coal 
from  all  the  mines  where  such  coal  is  produced,  as  herein- 


1474  SUITS    IN    EQUITY. 

above  described,  to  and  throughout  all  the  states  of  the 
United  States  for  the  various  uses  hereinabove  described,  by 
means  of  declaring,  enforcing  and  maintaining  the  said  gen- 
eral strike  or  cessation  of  labor  on  the  part  of  all  bituminous 
miners  and  mine  workers  who  are  members  of  the  Inter- 
national Union  United  Mine  Workers  of  America. 

Pursuant  to  their  said  conspiracy,  combination,  agreement 
and  arrangement,  the  defendants,  at  the  city  of  Indianapolis, 
within  this  district,  on  October  15  or  16,  1919,  under  the 
authority  conferred  upon  them  as  officers  of  the  said  Inter- . 
national  Union  United  Mine  Workers  of  America,  issued  so- 
called  strike  orders,  signed  by  defendants,  John  L.  Lewis 
and  Wm.  Green,  to  the  various  local  unions  and  members  of 
local  unions  who  are  members  of  the  said  international  union, 
to  cease  all  work  in  the  mining  of  bituminous  coal  at  mid- 
night on  Friday,  October  31st,  and  until  further  orders,  and 
they  have  issued  supplemental  instructions  and  orders  neces- 
sary to  the  fulfillment  of  such  orders  to  cease  work. 

Further  means  of  carrying  out  the  said  unlawful  con- 
spiracy, combination,  agreement  and  arrangement  agreed 
upon  by  the  defendants  as  a  part  of  such  conspiracy,  com- 
bination, agreement  and  arrangement  will  consist  in  the  issu- 
ance of  further  and  supplemental  orders  and  instructions 
covering  and  arranging  for  all  necessary  details  of  a  suc- 
cessful enforcement  of  the  strike;  and  in  the  continuous  and 
repeated  issuance  and  promulgation  by  the  defendants  of 
messages. of  encouragement  and  exhortation  to  continue  to 
abstain  from  work  and  not  to  return  to  the  mines;  and  in 
the  issuance  and  distribution  to  the  striking  miners  and  mine 
workers  of  so-called  strike  benefits  or  sums  of  money  pre- 
viously accumulated  and  subsequently  acquired  for  the  pur- 
pose of  assisting  the  striking  miners  and  mine  workers  to 
subsist  without  their  wages  temporarily  and  long  enough  to 
produce  a  shortage  of  bituminous  coal  so  acute  as  to  cause 
widespread  national  distress  and  thereby  to  enforce  compli- 
ance with  the  defendants'  aforesaid  demands. 


INJUNCTIONS.  1475 

At  Washington,  in  the  District  of  Columbia,  on  or  about 
October  15,  1919,  and  thereafter,  there  was  held  at  the 
instance  of  the  Secretary  of  Labor  of  the  United  States  a 
conference  between  the  defendants  and  the  operators  of  the 
bituminous  mines  in  the  central  competitive  field,  in  the  course 
of  which  the  President  of  the  United  States  proposed  to  the 
conference  that  the  defendants'  above-stated  demands  should 
be  submitted  to  negotiation  and  arbitration.  The  operators 
consented  to  such  proposal  of  the  President  of  the  United 
'States,  but  the  defendants  present  at  such  conference  refused 
to  submit  their  demands  to  arbitration  and  declared  that  un- 
less they  were  granted  on  or  before  October  31,  1919,  the 
strike  would  take  effect. 

The  aforesaid  strike  and  cessation  of  work  ordered  by  the 
defendants  to  begin  at  midnight  on  Friday,  October  31st,  will, 
as  the  defendants  publicly  and  authoritatively  declare  as  of- 
ficials of  the  said  International  Union  United  Mine  Workers 
of  America,  be  successful  in  reducing  the  production  of  bitu- 
minous coal  in  this  country  by  at  least  80  per  cent.,  and  will 
result  in  a  widespread  shutting  down  of  factories  and  indus- 
trial operations,  and  consequently  in  enforcing  idleness  and 
cessation  of  wages  to  vast  numbers  of  workers  throughout 
the  country ;  in  the  curtailment  of  production  of  many  neces- 
sary articles  and  commodities  and  of  gas  and  electricity,  and 
in  widespread  suffering  from  cold  in  large  sections  of  the 
United  States,  so  as  to  constitute  a  national  disaster  in  those 
respects. 

Moreover,  pursuant  to  the  act  of  Congress  of  August  29, 
1916,  entitled  "An  act  making  appropriations  for  the  support 
of  the  army  for  the  fiscal  year  ending  June  30,  1917,  and 
for  other  purposes,"  providing  as  follows : 

"The  President;  in  time  of  war,  is  empowered,  through  the 
Secretary  of  War,  to  take  possession  and  assume  control  of 
any  system  or  systems  of  transportation,  or  any  part  thereof, 
and  to  utilize  the  same,  to  the  exclusion  as  far  as  may  be 
necessary  of  all  other  traffic  thereon  for  the  transfer  or  trans- 


1476  SUITS    IN    EQUITY. 

portation  of  troops,  war  materials  and  equipment,  or  for  such 
other  purposes  connected  with  the  emergency  as  may  be  need- 
ful or  desirable," 

the  President  of  the  United  States,  acting  through  the  Secre- 
tary of  War  and  the  Director  General  of  Railroads,  by  presi- 
dential proclamation  of  December  26,  1917,  took  possession 
and  assumed  control  of  the  railroad  systems  of  transportation 
and  the  appurtenances  thereof  within  the  United  States,  and 
has  continuously  thereafter  operated  such  railroads  by  virtue 
of  such  possession  and  control. 

The  act  of  Congress  of  March  21,  1918,  entitled  "An  act 
to  provide  for  the  operation  of  transportation  systems  while 
under  federal  control,  for  the  just  compensation  of  their 
owners,  and  for  other  purposes,"  provided  as  follows: 

"That  the  President,  having  in  time  of  war  taken  over  the 
possession,  use,  control  and  operation  (called  herein  federal 
control)  of  certain  railroads  and  systems  of  transportation 
(called  herein  carriers),  is  hereby  authorized  to  agree  with 
and  to  guarantee  to  any  such  carrier  making  operating  re- 
turns to  the  Interstate  Commerce  Commission,  that  during 
the  period  of  such  federal  control  it  shall  receive  as  just 
compensation  an  annual  sum,  payable  from  time  to  time  in 
reasonable  installments,  for  each  year  and  pro  rata  for  any 
fractional  year  of  such  federal  control,  not  exceeding  a  sum 
equivalent  as  nearly  as  may  be  to  its  average  annual  railway 
operating  income  for  the  three  years  ended  June  30,   1917." 

A  presidential  proclamation  dated  March  29,  1918,  author- 
ized the  Director  General  of  Railroads  in  the  name  of  the 
President,  or  in  the  name  of  the  director  general  or  such 
agencies  as  he  might  designate,  to  agree  with  the  owners  of 
the  railroads  upon  the  amount  of  compensation  to  be  paid 
pursuant  to  law.  Pursuant  to  such  authority,  the  Director 
General  of  Railroads  at  various  dates  entered  into  contracts 
with  the  owners  of  the  principal  railroad  systems  of  the 
country,  guaranteeing  to  them  annual  compensation  calcu- 
lated upon  the  basis  of  and  approximately  equivalent  to  the 


INJUNCTIONS. 


1477 


average  annual  railway  operating  income  for  the  three  years 
ended  June  31,  1917,  which  contracts  are  still  in  full  force 
and  effect. 

Enormous  and  continuous  supplies  of  bituminous  coal  are 
essential  to  the  continuous  operation  of  the  railroads  by  the 
Director  General  of  Railroads,  the  daily  requirements  for 
such  purpose  being  approximately  387,000  tons.  The  Di- 
rector General  of  Railroads  has  approximately  1,237  con- 
tracts with  the  operators  of  the  bituminous  mines  for  the 
furnishing  of  bituminous  coal  for  the  purpose  of  the  opera- 
tion of  the  railroads,  which  contracts  provide  for  the  fur- 
nishing of  approximately  387,000  tons  of  such  coal  per  day, 
or  approximately  the  aggregate  actual  daily  requirements  of 
tlie  railroads.  Approximately  60  per  cent,  of  such  contracts 
by  volume  are  effective  by  their  terms  until  March  31,  1920, 
the  remainder  until  later  dates. 

Details  as  to  such  contracts  are  shown  in  the  following 
tables : 

STATEMENT  OF  CONTRACTS  FOR  PRODUCTION  OF 
RAILROAD  COAL 


Number  of 
contract! 


Approxima'te  fu-      Approx.  daily 

ture  daily  re-        tonnage  covered 

quircments  by  contract 


Eastern 

Allegheny 

Northwestern 


329  97,193  100,000 

283  75,000  75,152 

154  58,300  52,000 


Central  Western         138  60,000  66,000 


Southwestern 


Southern 


Pocohontas 
Total 


92  27,000  50,000 


195  54,000  30,602 


46  15,820  14,120 

1,237  387,313  387,874 


Dates  of  expiration  of 
contracts 

98%  3/31/20 

98%  3/31/20 

397c  3/31/20 

43%  6/30/20 

18%  other  dates 

50%  3/31/20 

41%  8/1/20 

9%  other  dates 

31%  3/31/20 

51%  7/31/20 

18%  other  dates 

67%  7/31/20 

17%  7/30/20 

10%  5/31/20 

6%  other  dates 

60%  3/31/20 

40%)  later  dates 


1478  SUITS    IN    EQUITY. 

The  terms  "Eastern,"  "Allegheny,"  etc.,  in  the  foregoing 
table  comprise  the  following  states : 

Eastern:  Maine,  New  Hampshire,  Vermont,  Massachusetts,  Con- 
necticut, Rhode  Island,  New  York,  Northern  Pennsylvania,  Ohio, 
Indiana. 

Allegheny:  Part  of  Pennsylvania,  Maryland,  Penna.  and  B.  &  O. 
Railroads  as  far  west  as  Chicago. 

Northwestern:  Wisconsin,  Northern  Illinois,  Northern  Iowa, 
Northern  Nebraska,  Minnesota,  South  Dakota,  North  Dakota,  Mon- 
tana, Northwestern  corner  of  Idaho,  Washington,  Oregon. 

Central- Western:  Illinois,  Southern  Iowa,  Northern  Missouri, 
Southern  Nebraska,  Kansas,  Northwestern  Oklahoma,  New  Mexico, 
Colorado,  Arizona,  Utah,  Wyoming,  Idaho,  Nevada,  California. 

Southwestern:  Remainder  of  Missouri,  Arkansas,  Louisiana,  Re- 
mainder of  Oklahoma,  Texas. 

Southern:  Kentucky,  Tennessee,  North  Carolina,  South  Carolina, 
Georgia,  Florida,  Alabama,  Mississippi. 

Pocohontas:     Virginia,  West  Virginia,  Northeastern  Kentucky. 

If  the  aforesaid  strike  ordered  by  the  defendants  to  begin 
on  midnight  of  October  31,  1919,  becomes  and  remains  effec- 
tive, as  defendants  declare  that  it  will,  it  will  be  impossible 
for  the  operators  of  the  bituminous  mines  to  fulfill  their 
aforesaid  contracts  for  supplying  coal  to  the  Director  General 
of  Railroads  for  the  operation  of  the  railroads  of  the  United 
States,  and  it  will  thereupon  become  impossible  for  the  gov- 
ernment of  the  United  States  through  the  railroads  of  the 
country  and  the  operation  to  operate  the  passenger  trains  and 
the  transportation  of  persons  and  property  by  railroads 
throughout  the  country  will  have  to  be  discontinued  and 
abandoned.  The  operating  revenues  of  the  railroads  for  the 
present  year  will  thus  be  enormously  reduced  below  the  aver- 
age annual  revenues  earned  during  the  three  years  ended 
June  30,  1917,  and  the  deficit  thus  incurred  will  have  to  be 
made  up  and  supplied  by  the  government  of  the  United 
States  under  its  aforesaid  guarantees  to  the  owners  of  the 
principal  railroads  of  the  country  of  annual  revenues  equiva- 
lent to  the  average  operating  annual  revenues  for  the  three 
years  ended  June  30,  1917,  out  of  the  public  treasury  and 
out  of  other  revenues  derived  by  the  government  from  tax- 


INJUNCTIONS.  1479 

ation.  In  addition  to  this,  a  suspension  of  the  operation  of 
the  railroads  will  make  it  impossible  for  the  government  to 
continue  the  transportation  of  the  mail,  the  army  of  the 
United  States,  the  food  supplies  of  the  people,  the  raw  ma- 
terials essential  to  the  industries  of  the  country,  and  the  out- 
put of  its  factories,  and  will  paralyze  both  intra  and  inter- 
state commerce. 

The  aforesaid  defendants,  or  many  of  them,  and  persons 
whose  names  are  unknown  to  the  plaintiff  who  are  associated 
with  the  defendants  in  their  said  unlawful  conspiracy,  com- 
bination, agreement  and  arrangement  on  October  29,  1919, 
assembled  at  the  principal  offices  of  the  International  Union 
United  Aline  Workers  of  America  at  Indianapolis,  in  this 
district,  and  considered  a  final  message  and  appeal  to  them 
made  by  the  President  of  the  United  States  on  October  25, 
1919,  to  refrain  from  enforcing  the  aforesaid  strike  order  to 
begin  at  midnight  on  October  31,  1919.  Said  defendants 
have  publicly  declared,  however,  that  the  said  strike  will  not 
be  cancelled  and  that  the  defendants  will  take  further  pro- 
ceedings to  render  it  effective.  They  have  already  deter- 
mined, voted  and  resolved  amongst  themselves  that  the  said 
strike  shall  become  effective,  and  that  the  preparations  there- 
for by  the  defendants  shall  continue,  and  they  are  about  to 
send  out  messages  announcing  and  declaring  to  the  members 
of  the  International  Union  United  Mine  Workers  of  America 
and  to  the  local  and  district  unions  thereof  that  the  said 
strike  shall  be  enforced  and  become  effective,  as  previously 
announced,  at  midnight  of  October  31,  1919.  The  various 
members  of  the  said  union  and  the  local  and  district  unions 
thereof  are  now  awaiting  the  issuance  of  such  messages  by 
the  defendants  in  order  to  determine  whether  or  not  the 
members  of  the  said  union  shall  cease  work  at  midnight  on 
October  31st.  The  issuance  of  such  messages  will  render  the 
strike  effective  at  the  time  mentioned  and  will  render  it  much 
more  difficult  to  terminate  the  strike  by  the  return  of  the 
miners  to  work  after  having  ceased  work  than  it  would  to 
prevent  the  effective  operation  of  the  strike  if  the  messages 


1480  SUITS    IN    EQUITY. 

were  not  issued,  in  which  event  larg-e  numbers  of  members 
of  the  said  union  would  in  all  probability  not  cease  work. 
The  aforesaid  messages  will  be  issued  forthwith  by  the  de- 
fendants unless  they  are  immediately  restrained  by  the  re- 
straining order  of  this  court.  Unless  so  restrained  the  de- 
fendants will  issue  further  orders  essential  to  rendering  effec- 
tive and  maintaining  the  said  strike  and  cessation  from  work 
without  which  orders  such  strike  would  not  continue  effec- 
tice  and  the  men  would  return  to  work.  The  defendant.*? 
will  also  unless  restrained  proceed  to  distribute  strike  benefits 
as  aforesaid  to  the  various  miners  and  mine  workers  on 
strike  so  as  to  compensate  them  for  their  loss  of  wages  while 
on  strike.  Thus  the  defendants  will  render  effective  and 
maintain  the  said  strike,  and  they  will  thus  stop  the  produc- 
tion and  distribution  of  bituminous  coal  throughout  the  coun- 
try so  as  to  paralyze  the  industries  of  the  country  and  to 
throw  large  numbers  of  workmen  into  enforced  idleness  and 
to  cause  widespread  suffering  from  cold  and  to  disrupt  the 
operation  of  the  railroads  of  the  country  by  the  plaintiff,  the 
United  States  of  America,  and  to  require  the  plaintiff  to  meet 
the  resultant  deficiencies  in  railroad  operating  revenues  by 
disbursements  out  of  the  public  treasury  as  aforesaid.  The 
plaintiff  is  without  adequate  remedy  in  the  premises  to  pre- 
vent the  bringing  about  of  such  a  catastrophe  by  the  unlaw- 
ful acts  and  doings  of  the  defendants  and  the  other  persons 
associated  with  them  in  such  acts  whose  names  are  unknown 
to  the  plaintiff,  except  in  a  court  of  equity  and  by  the  im- 
mediate restraining  orders  and  subsequent  injunctions  and 
decrees  of  the  court. 

Wherefore  plaintiff  prays: 

1.  That  writs  of  subpoena  issue,  directed  to  each  and  every 
of  the  defendants,  commanding  them  to  appear  herein  and 
answer,  but  not  under  oath  (answer  under  oath  being  hereby 
expressly  waived) ,  the  allegations  contained  in  this  complaint, 
and  to  abide  by  and  perform  such  orders  and  decrees  as  the 
court  may  make  in  the  premises. 


INJUNCTIONS.  1481 

2.  That  the  court  issue  forthwith  its  restraining  order  di- 
rected to  each  of  the  said  defendants,  both  as  individuals  and 
in  their  said  representative  capacities,  and  to  all  other  com- 
bining, conspiring,  agreeing  and  arranging  with  them,  and 
to  all  other  persons  whomsoever,  commanding  and  enjoining 
them  not  to  issue  any  messages  that  the  aforesaid  strike  is  to 
be  enforced  as  previously  announced  and  to  desist  and  refrain 
from  doing  any  further  act  whatsoever  to  bring  about  or 
continue  in  effect  the  above-described  strike  and  cessation 
from  work  on  the  part  of  the  miners  and  mine  workers  in 
the  bituminous  mines ;  from  issuing  any  further  strike  orders 
to  local  unions  and  members  of  local  unions  or  to  district 
unions  for  the  purpose  of  keeping  such  strike  in  effect  or  for 
the  purpose  of  supporting  such  strike  by  bringing  about  or 
maintaining  any  other  strikes;  from  issuing  any  instructions, 
written  or  oral,  covering  or  arranging  for  the  details  of  en- 
forcing such  strike  ordered  to  begin  at  midnight  on  October 
31,  1919;  from  issuing  any  messages  of  encouragement  or 
exhortation  to  striking  miners  or  mine  workers  or  unions 
thereof  to  abstain  from  work  and  not  to  return  to  the  mines 
in  pursuance  of  such  strike;  and  from  issuing  and  distrib- 
uting or  taking  any  steps  to  procure  the  issuance  or  distri- 
bution to  miners  and  mine  workers  striking  and  abstaining 
from  work  in  pursuance  of  such  strike  of  so-called  strike 
benefits  or  sums  of  money  previously  accumulated  or  sub- 
sequently acquired  to  assist  such  striking  miners  and  mine 
workers  to  subsist  while  striking  or  to  aid  them  in  any  way 
by  reason  of  or  with  reference  to  such  strike  and  abstaining 
frorn  work,  and  from  conspiring,  combining,  agreeing  or  ar- 
ranging with  each  other  or  any  other  person  to  limit  the 
facilities  for  the  production  of  coal,  or  to  restrict  the  supply 
or  distribution  of  coal  or  from  aiding  or  abetting  the  doing 
of  any  such  act  or  thing. 

3.  That  the  court,  after  notice  to  and  hearing  of  the  de- 
fendants, issue  its  temporary  injunction  pendente  lite  enjoin- 


1482  .  SUITS   IN    EQUITY. 

ingf  the  defendants  and  all  other  persons  unlawfully  conspir- 
ing,, combining,  agreeing  and  arranging  with  them  as  here- 
inbefore alleged,  during  the  continuance  of  this  suit,  in  all 
respects  as  enumerated  in  the  next  preceding  paragraph  here- 
of; and  further,  from  permitting  said  strike  order  to  remain 
in  effect,  and  commanding  them  to  desist  from  aiding  said 
strike  by  permitting  said  strike  order  to  remain  in  effect  and 
commanding  them  to  issue  a  withdrawal  and  cancellation  of 
said  strike  order. 

4.  That  the  court  upon  final  hearing  of  this  suit  issue  its 
permanent  injunction  against  the  defendants  and  all  persons 
with  them,  as  hereinbefore  alleged,  in  all  respects  as  specified 
in  paragraphs  2  and  3  of  this  prayer. 

That  plaintiff  have  such  other,  further  and  general  relief 
as  the  nature  of  the  case  may  require  and  the  court  may 
deem  proper  in  the  premises.  L.  Ert.  Slack, 

C.  B.  Ames,  United  States  Attorney. 

Assistant  to  the  Attorney  General. 

Henry  S.  Mitchell, 

Special  Assistant  to  the  Attorney  General. 

State  of  Indiana, 
County  of  . 

L.  Ert  Slack,  being  first  duly  sworn,  on  oath  states  that 
he  has  read  the  foregoing  bill  and  knows  the  contents  there- 
of, and  that  he  verily  believes  the  things  therein  contained 
are  true.  L.  Ert.  Slack. 

Subscribed  and  sworn  to  before  me  this  31st  day  of  Oc- 
tober, 1919.  Noble  C.  Butler, 

Clerk  United  States  District  Court  for  the  District 
of  Indiana. 
[Seal.] 
Taken  from  U.  S.  v.  Hays,  et  al.,  Indiana  District. 


f 


I 


INJUNCTIONS.  .  1483 

No.  982. 

Temporary  Restraining  Order. 

In  the  District  *  Court  of  the  United  States, 
District  of  Indiana. 

United  States  of  America,  Plaintiff.   \  ,.     -r-     . 

/  In  Equity. 

vs.  V '_ 

Frank  J.  Hayes  et  al.,  Defendants.    ) 

And  now,  on  this  31st  day  of  October,  1919,  at  10:40 
a.  m.,  this  cause  coming  on  to  be  heard  on  the  motion  of 
the  plaintiff  for  a  temporary  restraining  order,  as  prayed  in 
said  bill,  and  plaintiff  having  exhibited  its  sworn  bill  to  the 
Honorable  Albert  B.  Anderson,  judge  of  the  United  States 
district  court  for  the  district  of  Indiana,  and  the  court  now 
being  fully  advised  in  the  premises  and  having  heard  read 
said  bill, 

It  is  ordered  that  a  temporary  restraining  order  issue  out 
of  and  under  the  seal  of  this  court  commanding  the  said  de- 
fendants, Frank  J.  Hayes,  John  L.  Lewis,  William  Green, 
Thomas  Davis,  William  Donaldson,  John  O'Leary,  A.  R. 
Watkins,  N.  J.  Ferry,  Lawrence  Bramlet,  John  J.  Mates, 
Sam  Caddy,  W.  D.  VanHorn,  John  Zimmerman,  Samuel 
Ballantyne,  G.  L.  Peck,  Luke  Brennan,  B.  A.  Scott,  Frank 
Walters,  William  Dalrymple,  Hugh  McLeon,  George  Baker, 
William  Muir,  Andrew  Steele,  Silby  Barrett,  Adam  Wilkin- 
son, Lawrence  Dwyer,  John  T.  Dempsey,  John  Brophy, 
Philip  Murray,  John  Moore.  Thomas  Kennedy,  John  Roman, 
Christ  J.  Golden,  Robert  H.  Harlin,  Edward  Stewart,  Frank 
Farrington,  J.  C.  Lewis,  Alex  Howat,  George  O.  Johnson, 
Francis  Drum,  C.  F.  Keeney,  S.  A.  Kellar,  J.  R.  Kennamer, 
John  Wilkinson,  Martin  Cahill,  W.  D.  Duncan,  William 
Stevenson,  D.  A.  Frampton,  Henry  Drennan,  J.  R.  Gilmore, 
John  Mack,  Richard  Gilbert,  William  Hargest,  G.  W.  Sav- 
age, John  Yourishin,  Ira  Stoner,  James  J.  McAndrews, 
Ernest  Newsham,  William  Mitch,  Walter  Nesbit,  John  Gay, 
Thomas  Harvey,  H.  C.  Stewart,  William  Trickett,  Fred 
I 


1484  SUITS    IN    EQUITY. 

Mooney,  E.  L,  Reed,  J.  L.  Clemo,  E.  F.  Ross,  James  Mor- 
gan, H.  H.  Vincent,  John  Murray,  George  Hepple,  J.  B. 
McLachlan,  Robert  Condon,  John  Gatherum,  John  Mossop, 
Albert  NeutzHng,  T.  G.  Morgan,  Percy  Tetlow,  William 
Young,  Thomas  Paskell.  Thomas  Holliday,  Ellis  Searles  and 
Robert  Livett,  both  individually  and  in  their  representative 
capacities  as  officers  of  the  International  Union  United  Mine 
Workers  of  America,  or  as  members  of  said  organization  or 
any  of  its  district  or  local  union  or  any  committee  thereof, 
and  all  persons  combining,  conspiring,  agreeing  or  arranging 
with  them,  and  all  other  persons  whomsoever,  not  to  issue 
any  messages  that  the  strike  of  the  miners  and  mine  workers 
in  the  bituminous  coal  fields  of  the  United  States,  heretofore 
ordered  by  the  said  defendants,  or  some  of  them,  to  take 
effect  at  midnight  on  October  31,  1919,  is  to  be  enforced  as 
previously  announced  or  otherwise  and  to  desist  and  refrain 
from  doing  any  further  act  whatsoever  to  bring  about  or 
continue  in  effect  the  above-described  strike  and  cessation 
from  work  on  the  part  of  the  miners  and  mine  workers  in 
the  bituminous  mines ;  from  issuing  any  further  strike  orders 
to  local  unions  and  members  of  local  unions  or  to  district 
unions  far  the  purpose  of  keeping  such  strike  in  effect  or  for 
the  purpose  of  supporting  such  strike  by  bringing  about  or 
maintaining  any  other  strikes;  from  issuing  any  instructions, 
written  or  oral,  covering  or  arranging  for  the  details  of  enforc- 
ing such  strike  order  to  begin  at  midnight  on  October  31,  1919; 
from  issuing  any  messages  of  encouragement  or  exhortation 
to  striking  miners  or  mine  workers  or  unions  thereof  to  ab- 
stain from  work  and  not  to  return  to  the  mines  in  pursuance 
of  such  strike;  and  from  issuing  and  distributing  or  taking 
any  steps  to  procure  the  issuance  or  distribution,  to  miners 
and  mine  workers  striking  and  abstaining  from  work  in  pur- 
suance of  such  strike,  of  so-called  strike  benefits  or  sums  of 
money  previously  accumulated  or  subsequently  acquired  to 
assist  such  striking  miners  and  mine  workers  to  subsist  while 
striking,  or  to  aid  them  in  any  way  by  reason  of  or  with 


/ 


INJUNCTIONS.  1485 

reference  to  such  strike  and  abstaining  from  work,  and  from 
conspiring,  combining,  agreeing  or  arranging  with  each  other 
or  any  other  person  to  limit  the  faciHties  for  the  production 
of  coal,  or  to  restrict  the  supply  or  distribution  of  coal,  or 
from  aiding  or  abetting  the  doing  of  any  such  act  "or  thing. 

It  is  further  ordered  that  the  aforesaid  temporary  restrain- 
ing order  shall  be  in  force  and  binding  upon  such  of  said 
defendants  as  are  named  herein  from  and  after  the  service 
upon  them  severally  of  this  writ  by  delivering  to  them  sever- 
ally a  copy  of  this  writ,  or  by  reading  the  same  to  them, 
and  the  service  upon  them  respectively  of  the  writ  of  sub- 
poena herein. 

It  is  further  ordered  that  this  cause  be  set  down  for  hear- 
ing, upon  the  application  for  temporary  injunction,  on  the 
8th  day  of  November,  1919,  at  10  o'clock  a.  m.,  in  the 
United  States  district  court  room,  in  the  city  of  Indianapolis, 
Indiana ;  and  the  said  defendants  and  each  of  them  are  here- 
by notified  of  said  hearing  and  this  temporary  restraining 
order  shall  remain  in  full  force  and  effect  until  said  hearing 
and  the  further  order  of  this  court. 

Taken  from  U.  S.  v.  Hays,  et^l.,  Indiana  District. 


rAW   LIBRARY 

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LOS  ANGELES  COUNTY 


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T^iEPfJ  RESiOf^AL  library 


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